Opinion
Submitted February 15, 2001.
March 19, 2001.
In an action, inter alia, to foreclose a mechanic's lien, the defendants appeal from an order of the Supreme Court, Nassau County (Carter, J.), dated July 26, 2000, which granted the plaintiff's cross motion to compel arbitration and denied their motion to change the venue of the action from Nassau County to Onondaga County.
Menter, Rudin Trivelpiece, P.C., Syracuse, N.Y. (Vic J. Kopnitsky, Jr., of counsel), for appellants.
Braverman Warfield, LLP, New Hyde Park, N.Y. (Shari Braverman and Suzanne Brooks Fertig of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the defendants' contentions, the plaintiff's commencement of this action, inter alia, to foreclose a mechanic's lien in response to the defendants' demand pursuant to Lien Law § 59 did not constitute a waiver of its contractual right to resolve the dispute in arbitration (see, Matter of D.M.C. Constr. Corp., v. Nash Steel Corp., 50 A.D.2d 560; Matter of Riggi v. Wade Lupe Constr. Co., 176 A.D.2d 1177; Burgart, Inc. v. Foster-Lipkins Corp., 63 Misc.2d 930, affd 38 A.D.2d 779, affd 30 N.Y.2d 901). Therefore, the Supreme Court properly granted the plaintiff's cross motion to compel arbitration.
In light of the foregoing, the defendants' contentions concerning their motion to change the venue of the action are academic.