Opinion
83 A.D.3d 481 923 N.Y.S.2d 29 Dorothy SINGER, et al., Plaintiffs-Respondents, v. Robert SEAVEY, et al., Defendants-Appellants, John Edmonds, Defendant-Respondent. No. 2011-02930 Supreme Court of New York, First Department April 12, 2011
Gibson, Dunn & Crutcher LLP, New York (Anne Coyle of counsel), for appellants.
Hogan Lovells, U.S. LLP, New York (Sabrina H. Cochet of counsel), for Dorothy Singer, Norma Brandes, Mars Associates, Inc., Normel Construction Corp., Gary A. Singer, Brad C. Singer, Steven G. Singer, Wendy Brandes, Frieda Tydings, Adine D. Brandes, George Kleinman, GBK Associates Inc., Elise Weingarten, Loren Kleinman and Gayle Reisman, respondents.
M. Douglas Haywoode, Brooklyn, for John Edmonds, respondent.
MAZZARELLI, J.P., FRIEDMAN, McGUIRE, RENWICK, RICHTER, JJ.
Appeal from order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 16, 2009, which, to the extent appealed from, denied the motion by defendants Robert Seavey and BNA Realty Company to dismiss the cause of action for breach of fiduciary duty as against them, unanimously dismissed, without costs, as academic. Order, same court and Justice, entered January 13, 2010, which denied defendants' motion to compel arbitration, unanimously reversed, on the law, without costs, the motion granted, and all proceedings stayed pending arbitration, except plaintiffs' fourth cause of action seeking a declaration as to the extent of defendant John Edmonds' interest in the partnership.
Defendants did not waive their right to arbitrate by moving to dismiss the complaint and appealing from the partial denial of the motion ( see Flynn v. Labor Ready, 6 A.D.3d 492, 775 N.Y.S.2d 357 [2004] ). Nor, since defendants made their demand for arbitration before serving their answer, did they waive the right by asserting the cross claim ( see City Trade & Indus., Ltd. v. New Cent. Jute Mills Co., 25 N.Y.2d 49, 55, 302 N.Y.S.2d 557, 250 N.E.2d 52 [1969] ).
In light of this determination, we dismiss the appeal from the first order as academic.
The Decision and Order of this Court entered herein on December 9, 2010 is hereby recalled and vacated ( see M-11 decided simultaneously herewith).