Gibbs v. Holland & Knight, LLP

2016 NY Slip Op 6670, 143 A.D.3d 507, 38 N.Y.S.3d 796

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 2016
• Docket: 159345/14 1875N 1874
• Status: Published

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 30, 2015, which granted defendant’s motion to compel arbitration and stay this action, and order, same court and Justice, entered October 22, 2015, which denied plaintiff’s motion for renewal, unanimously affirmed, with costs.

The motion court correctly found that, although plaintiff had not signed the partnership agreement containing the arbitration provision, he had assumed the duty to arbitrate by annually agreeing to be bound by the partnership agreement and by repeatedly invoking the dispute resolution provision in the partnership agreement (see Thomson-CSF, S.A. v American Arbitration Assn., 64 F3d 773, 777 [2d Cir 1995]).

The court also correctly found that the dispute was governed by the arbitration provision.

Renewal was properly denied, as no waivér of the right to arbitrate was effected by defendant’s application for a preliminary injunction in aid of arbitration and the accompanying assertion of counterclaims, with no further litigation activity (see Cusimano v Schnurr, 26 NY3d 391, 400 [2015]; LaRosa v Arbusman, 74 AD3d 601, 604 [1st Dept 2010]). Notably, defendant demonstrated a clear intent to continue the arbitration process by seeking mediation of the counterclaims under the dispute resolution provision of the partnership agreement.

We have considered plaintiff’s other contentions and find them unavailing.

Concur — Mazzarelli, J.R, Sweeny, Acosta, Moskowitz and Gesmer, JJ.