Johnson v. Brooklake Associates

Appellate Division of the Supreme Court of New York

Johnson v. Brooklake Associates

271 A.D.2d 382, 707 N.Y.S.2d 826, 2000 N.Y. App. Div. LEXIS 4611

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

DecidedApril 27, 2000

StatusPublished

This text of 271 A.D.2d 382 (Johnson v. Brooklake Associates) 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.

Bluebook

Johnson v. Brooklake Associates, 271 A.D.2d 382, 707 N.Y.S.2d 826, 2000 N.Y. App. Div. LEXIS 4611 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered on or about October 7, 1999, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment, granted that branch of defendant’s cross motion for summary judgment seeking dismissal of plaintiffs Executive Law § 296 (16) claim, and denied that branch of the cross motion seeking dismissal of plaintiffs breach of contract claim, unanimously affirmed, without costs.

The motion court properly dismissed plaintiffs Executive Law § 296 (16) claim. Plaintiffs breach of contract claim was, however, properly sustained as against defendant’s contention that, pursuant to the parties’ contract, it was one properly to be pursued in arbitration. Defendant waived any right to arbitrate the claim by affirmatively participating in this lawsuit (see, De Sapio v Kohlmeyer, 35 NY2d 402, 405; Poledar Realty v Christ, 171 AD2d 603, 605). Concur — Mazzarelli, J. P., Ellerin, Lerner, Rubin and Andrias, JJ.

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—Order, Supreme Court, New York County (Louis York, J.), entered on or about October 7, 1999, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment, granted that branch of defendant’s cross motion for summary judgment seeking dismissal of plaintiffs Executive Law § 296 (16) claim, and denied that branch of the cross motion seeking dismissal of plaintiffs breach of contract claim, unanimously affirmed, without costs.

The motion court properly dismissed plaintiffs Executive Law § 296 (16) claim. Plaintiffs breach of contract claim was, however, properly sustained as against defendant’s contention that, pursuant to the parties’ contract, it was one properly to be pursued in arbitration. Defendant waived any right to arbitrate the claim by affirmatively participating in this lawsuit (see, De Sapio v Kohlmeyer, 35 NY2d 402, 405; Poledar Realty v Christ, 171 AD2d 603, 605). Concur — Mazzarelli, J. P., Ellerin, Lerner, Rubin and Andrias, JJ.

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Bluebook (online)

271 A.D.2d 382, 707 N.Y.S.2d 826, 2000 N.Y. App. Div. LEXIS 4611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-brooklake-associates-nyappdiv-2000.

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