Anthony Drugs of Bethpage, Inc. v. Local 1199 Drug & Hospital Union

34 A.D.2d 788, 311 N.Y.S.2d 622, 74 L.R.R.M. (BNA) 2832, 1970 N.Y. App. Div. LEXIS 4908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1970
• Status: Published

Opinion

In a proceeding to stay arbitration, petitioner appeals from two orders of the Supreme Court, Nassau County, the first dated December 8, 1969, which granted respondent’s motion to open its default in opposing the proceeding, and the second dated January 6, 1970, which granted respondent’s motion to vacate petitioner’s demand for a jury trial on the issue of whether or not there was a valid agreement to arbitrate. Order dated December 8, 1969 affirmed. No opinion. Order dated January 6, 1970 reversed, on the law, and respondent’s motion to vacate the demand for a jury trial denied. Appellant is awarded $10 costs and disbursements to cover both appeals. Although the UPLR does not make express provision for trial by jury of matters preliminary to arbitration, it was not the intent of the framers to thereby eliminate trial by jury where constitutionally required or desirable (Matter of MVAIC [Stein], 23 A D 2d 526, 527; 8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7503.24 ; 22 Carmody Wait 2d, New York Practice, § 141:74). The contention that a party has not bound himself to arbitrate raises a factual question which entitles him to a trial by jury (Matter of Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 N. Y. 382, 390; Matter of Bernson Silk Mills v. Siegel & Co., 256 App. Div. 617, 620). Christ, P. J., Hopkins, Brennan and Benjamin, JJ., concur. (Beldock, P. J., deceased.)