Smullyan v. SIBJET S.A.
| Decision Date | 10 February 1994 |
| Citation | 201 A.D.2d 335,607 N.Y.S.2d 316 |
| Parties | Application of Bennett SMULLYAN, et al., Petitioners-Respondents, v. SIBJET S.A., et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before CARRO, J.P., and WALLACH, ASCH, NARDELLI and WILLIAMS, JJ.
Order and judgment (one paper), Supreme Court, New York County, (Seymour Schwartz, J.), entered May 13, 1993, which, inter alia, granted the petitioners' application pursuant to CPLR 7510 seeking to confirm an arbitration award, dated March 4, 1992, and which denied the appellants' cross motion pursuant to CPLR 7511 seeking to vacate the arbitration award, unanimously affirmed, without costs.
The IAS court properly determined that the arbitrator had neither exceeded his authority nor rendered an irrational award.
Although, as appellants correctly note, parties to a commercial transaction will generally not be compelled to arbitrate in the absence of an express, unequivocal agreement to that effect (Matter of Marlene Inds Corp. [Carnac Textiles], 45 N.Y.2d 327, 333, 408 N.Y.S.2d 410, 380 N.E.2d 239), nevertheless, a party otherwise entitled to a judicial determination of the arbitrability of a dispute may waive that right by actively participating in the arbitration without seeking a stay pursuant to CPLR § 7503(b) or otherwise preserving their right to have the issue of arbitrability judicially determined (Matter of National Cash Register Co. [Wilson], 8 N.Y.2d 377, 382-383, 208 N.Y.S.2d 951, 171 N.E.2d 302).
Accordingly, the IAS court properly determined that appellants waived their claim that they were not bound by the letter agreement nor obligated to arbitrate any disputes arising thereunder by their active participation in the arbitration proceedings before the AAA, including, inter alia, submitting an appearance, participating in the selection of the arbitrator, and presenting witnesses and extensive evidence before that forum, rather than seeking a statutory stay of the proceedings pursuant to CPLR § 7503(b) upon the ground that they had not agreed to its terms, or by otherwise preserving their right to have the issue of arbitrability judicially determined.
In any event, SIBJET and AXA, as successors in interest and mere alter egos of SIFA, were properly compelled to participate in the arbitration proceedings, although not signatories to the letter agreement executed by SIFA, which contained the broad arbitration clause (see, ...
To continue reading
Request your trial
-
TNS Holdings, Inc. v. MKI Securities Corp.
...Matter of Marlene Indus. Corp. [Carnac Textiles], 45 N.Y.2d 327, 333, 408 N.Y.S.2d 410, 380 N.E.2d 239; Matter of Smullyan v. SIBJET, S.A., 201 A.D.2d 335, 335-336, 607 N.Y.S.2d 316; CPLR 7503[b] ). An exception exists however where it is necessary to hold one corporation responsible for th......
-
Aish Hatorah N.Y., Inc. v. Fetman
...v. Uhr, 79 N.Y.2d 526, 538 [1992] ; Matter of National Cash Register Co. [Wilson], 8 N.Y.2d 377, 383 [1960] ; Matter of Smullyan [SIBJET S.A.], 201 A.D.2d 335, 336 [1st Dept 1994] ; CPLR 7511[b][2][ii] ). A party who has participated in an arbitration may only obtain vacature of an award wh......
-
Arner v. Liberty Mut. Ins. Co.
...A.D.2d 656, 627 N.Y.S.2d 802; Matter of Eveready Ins. Co. v. Royal Ins. Co., 215 A.D.2d 557, 626 N.Y.S.2d 833; Matter of Smullyan v. SIBJET S.A., 201 A.D.2d 335, 607 N.Y.S.2d 316; see also, Matter of National Cash Register Co. v. Wilson, 8 N.Y.2d 377, 208 N.Y.S.2d 951, 171 N.E.2d 302). Here......
-
Weiser v. Robert K. Futterman & Assoc.s LLC
...Commerce & Indus. Ins. Co. v. Nester, 90 N.Y.2d at 261, 264; Sims v. Siegelson, 246 A.D.2d 374, 377 (1st Dep't 1998); Matter of Smullven, 201 A.D.2d 335, 336 (1st Dep't 1994). See Bevona v. Roxanne Mqt, 280 A.D.2d 254, 256 (1st Dep't 2001). Once they have taken part in the arbitration proce......