Weiss v. Weiss

Appellate Division of the Supreme Court of New York

Weiss v. Weiss

228 A.D.2d 366, 644 N.Y.2d 271, 644 N.Y.S.2d 271, 1996 N.Y. App. Div. LEXIS 7347

Appellate Division of the Supreme Court of the State of New York·Decided June 25, 1996·Published·Cited by 1 cases

Opinion

We agree with the motion court that plaintiff’s motion to stay family offense proceedings pending in Family Court and to compel arbitration of the domestic violence issues involved therein was frivolous, and deserving of the $1,000 sanction imposed on plaintiff’s former attorney. The motion should have been made in Family Court (CPLR 7503 [a]); plaintiff’s participation in the Family Court proceeding for over a year constituted a waiver of any right to arbitrate (see, Sherrill v Grayco Bldrs., 64 NY2d 261, 272); and the stipulation of settlement and judgment of divorce containing the arbitration provision did not specifically provide for arbitration of domestic violence issues (see, Bowmer v Bowmer, 50 NY2d 288). Under the circumstances, the motion to enforce the arbitration provision can be deemed nothing other than an attempt to further delay resolution of the Family Court proceeding in which defendant sought an order of protection against plaintiff. Concur—Sullivan, J. P., Milonas, Wallach, Ross and Nardelli, JJ.

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We agree with the motion court that plaintiff’s motion to stay family offense proceedings pending in Family Court and to compel arbitration of the domestic violence issues involved therein was frivolous, and deserving of the $1,000 sanction imposed on plaintiff’s former attorney. The motion should have been made in Family Court (CPLR 7503 [a]); plaintiff’s participation in the Family Court proceeding for over a year constituted a waiver of any right to arbitrate (see, Sherrill v Grayco Bldrs., 64 NY2d 261, 272); and the stipulation of settlement and judgment of divorce containing the arbitration provision did not specifically provide for arbitration of domestic violence issues (see, Bowmer v Bowmer, 50 NY2d 288). Under the circumstances, the motion to enforce the arbitration provision can be deemed nothing other than an attempt to further delay resolution of the Family Court proceeding in which defendant sought an order of protection against plaintiff. Concur—Sullivan, J. P., Milonas, Wallach, Ross and Nardelli, JJ.

Weiss v. Weiss, 228 A.D.2d 366, 644 N.Y.2d 271, 644 N.Y.S.2d 271, 1996 N.Y. App. Div. LEXIS 7347 (N.Y. Ct. App. 1996).

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Opinion

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