D. M. C. Construction Corp. v. A. Leo Nash Steel Corp.

50 A.D.2d 560, 375 N.Y.S.2d 18, 1975 N.Y. App. Div. LEXIS 12307

Opinion

— In a proceeding to stay arbitration of a contract dispute, in which respondent cross-moved to compel arbitration, petitioner appeals from portions of two orders of the Supreme Court, Kings County, both dated June 16, 1975, as follows: (1) from so much of the first order as (a) dismissed the petition and (b) granted the cross motion and (2) from so much of the second order as, upon reargument, adhered to the original decision. Appeal from the original order dismissed as academic. That order was superseded by the order which granted reargument. Order on reargument affirmed insofar as appealed from, with $20 costs and disbursements. Respondent commenced an action to foreclose a mechanic’s lien and later joined, as a party defendant, the bonding company which had furnished a bond to discharge the lien. The commencement and maintenance of that action did not constitute a waiver of its right to arbitration (see Lien Law, § 35; May r New Amsterdam Cas. Co., 270 App Div 472; A. Burgart, Inc. v Foster-Lipkins Corp., 63 Misc 2d 930, affd 38 AD2d 779, affd 30 NY2d 901). Martuscello, Acting P. J., Cohalan, Christ, Munder and Shapiro, JJ., concur.