Gross v. Tagger

Appellate Division of the Supreme Court of New York

Gross v. Tagger

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 17, 1974

StatusPublished

Cited by1 cases

This text of 46 A.D.2d 876 (Gross v. Tagger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gross v. Tagger, 46 A.D.2d 876, 362 N.Y.S.2d 17, 1974 N.Y. App. Div. LEXIS 3329 (N.Y. Ct. App. 1974).

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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.

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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.

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Bluebook (online)

46 A.D.2d 876, 362 N.Y.S.2d 17, 1974 N.Y. App. Div. LEXIS 3329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-tagger-nyappdiv-1974.

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