Gross v. Tagger

46 A.D.2d 876, 362 N.Y.S.2d 17, 1974 N.Y. App. Div. LEXIS 3329

Opinion

Judgment, Supreme Court, New York County, entered May 15, 1974, denying petitioner’s application to stay arbitration, unanimously reversed, on the law, the motion granted and ¡arbitration stayed. Appellant shall recover of respondent $40 costs and disbursements of this appeal. The dispute between the parties arises out of the alleged breach of a shareholder’s agreement containing an arbitration clause sufficiently broad to encompass this controversy. However, in an action previously commenced by petitioner, respondent counterclaimed for the same relief now sought from the arbitrators. Such manifestation of respondent’s acceptance of a judicial forum to dispose of his claim on the merits, coupled with his unreasonable delay in serving a proper demand, constitutes a waiver of the right to now seek arbitration of the identical issue. {DeSapio v. Kohlmeyer, 35 N Y 2d 402; Matter of Zimmerman v. Cohen, 236 N. Y. 15; Eager, Arbitration Contract and Proceedings, § 51, subd. 2.) Concur — Nunez, J. P., Murphy, Lupiano, Steuer and Tilzer, JJ.