Summary
In Yonkers v. Cassidy, 406 N.Y.S.2d 32, 44 N.Y.2d 784, 377 N.E.2d 475 (Ct. of App. 1978), the City of Yonkers sought to permanently stay arbitration of a union's dispute with the city on the basis that the union had already litigated the matter in the courts.
Summary of this case from Shevlin v. PrudentialOpinion
Argued March 28, 1978
Decided April 27, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HAROLD L. WOOD, J.
James M. Rose for appellants.
Eugene J. Fox, Corporation Counsel (Richard L. Steer of counsel), for respondent. Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Shirley Adelson Siegel of counsel), for New York State Emergency Financial Control Board for the City of Yonkers, amicus curiae.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Appellants chose to litigate this dispute in a declaratory judgment action ( 39 N.Y.2d 964). Having taken that course they waived the right to submit the question to arbitration (Matter of Zimmerman v Cohen, 236 N.Y. 15; cf. Denihan v Denihan, 34 N.Y.2d 307, 310; Hadjioannou v Avramides, 40 N.Y.2d 929, 931; Validity Enforceability of Provision for Binding Arbitration and Waiver Thereof, Ann., 24 ALR3d 1325).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.