Cunningham v. Horning Construction

309 A.D.2d 1187, 765 N.Y.S.2d 295, 2003 N.Y. App. Div. LEXIS 10181

Opinion

Appeal from that part of an order of Supreme Court, Monroe County (Fraise, J.), entered February 4, 2003, that granted the motion of defendant A.A.C. Contracting, Inc. seeking a permanent stay of arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted the motion of defendant A.A.C. Contracting, Inc. (AAC) seeking a permanent stay of arbitration. As the court properly determined, defendant Horning Construction (Horning) waived its right to arbitrate its claim against AAC by asserting a cross claim against AAC in which it sought recoupment of the same funds sought in its demand for arbitration (see generally De Sapio v Kohlmeyer, 35 NY2d 402, 405 [1974]). Moreover, the demand for arbitration was not made until two years after the interposition of the cross claim. Where, as here, the “participation [of Horning] in the lawsuit manifests an affirmative acceptance’ of the judicial forum, with whatever advantages [the judicial forum] may offer in the particular case, [its] actions are then inconsistent with [its] later claim that only the arbitral forum is satisfactory” (id.). Present — Green, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.