Waldman v. Mosdos Bobov, Inc.
| Decision Date | 20 April 2010 |
| Citation | 898 N.Y.S.2d 523,72 A.D.3d 983 |
| Parties | In the Matter of Chaim WALDMAN, et al., appellants, v. Mosdos BOBOV, Inc., et al., respondents, Bobover Yeshiva Bnei Zion, etc., respondent-respondent. |
| Court | New York Supreme Court — Appellate Division |
72 A.D.3d 983
In the Matter of Chaim WALDMAN, et al., appellants,
v.
Mosdos BOBOV, Inc., et al., respondents,
Bobover Yeshiva Bnei Zion, etc., respondent-respondent.
Supreme Court, Appellate Division, Second Department, New York.
April 20, 2010.
J. Michael Gottesman, New York, N.Y., for appellants.
Dechert, LLP, New York, N.Y. (Gary J. Mennitt of counsel), for respondent-respondent.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitioners appeal from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated August 6, 2008, which denied their petition to confirm the award and granted the cross petition to vacate the award, and (2) so much of an order of the same court dated December 19, 2008, as, upon renewal and reargument, adhered to the original determination.
ORDERED that the appeal from the order dated August 6, 2008, is dismissed, as that order was superseded by the order dated December 19, 2008, made upon renewal and reargument; and it is further,
ORDERED that the order dated December 19, 2008, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondent-respondent.
"Like contract rights generally, a right to arbitration may be modified, waived or abandoned" ( Sherrill v. Grayco Bldrs., Inc., 64 N.Y.2d 261, 272, 486 N.Y.S.2d 159, 475 N.E.2d 772; see Stark v. Molod Spitz DeSantis & Stark, P.C., 9 N.Y.3d 59, 66, 845 N.Y.S.2d 217, 876 N.E.2d 903). Where a party affirmatively seeks the benefits of litigation, in a manner "clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration," the right to arbitrate has been waived ( Stark v. Molod Spitz DeSantis & Stark, P.C., 9 N.Y.3d 59, 66, 845 N.Y.S.2d 217, 876 N.E.2d 903 [internal quotation marks omitted]; Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 372, 795 N.Y.S.2d 491, 828 N.E.2d 593; Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 272, 486 N.Y.S.2d 159, 475 N.E.2d 772; Fein v. General Elec. Co., 40 A.D.3d 807, 835 N.Y.S.2d 736).
Here, the petitioners previously commenced two judicial actions regarding the same dispute upon which this arbitration award is based, one of which terminated with this Court's affirmance of the dismissal of the complaint ( see Waldman v. Bobover Yeshiva Bnei Zion, 289 A.D.2d 399, 734 N.Y.S.2d 901). "By commencing an action at law involving arbitrable issues, [the petitioners]...
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