finding no waiver where application for stay preceded participation in arbitrator selection processSummary of this case from Major League Baseball Props., Inc. v. Corporacion de Television Y Microonda Rafa, S.A.
March 6, 1989
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the judgment is reversed, on the law, with costs, and the petitioner's application to permanently stay the arbitration is granted.
The genesis of the instant dispute lies in a contract for the renovation of a municipal building between the Town of Mamaroneck (hereinafter the petitioner) and Byron Electric Co., Inc. (hereinafter the respondent). The respondent claimed that the petitioner breached the contract and served a demand for arbitration on the petitioner. The petitioner timely applied to permanently stay the arbitration (see, CPLR 7503). The respondent argued that the petitioner waived its right to move for a stay of arbitration by participating in the arbitration proceedings. In the alternative, the respondent contended that the contract required the parties to arbitrate. The court found that the contract required that the parties arbitrate the dispute and denied the petitioner's application. We reverse.
The petitioner did not waive its right to move for a stay of arbitration. Unlike each of the cases relied upon by the respondent wherein the party which opposed arbitration interposed its objection after it participated in the arbitration proceedings (see, Matter of National Cash Register Co. [Wilson], 8 N.Y.2d 377, 382; Matter of Home Mut. Ins. Co. v Springer, 130 A.D.2d 493; Matter of Standard Steel Section v Royal Guard Fence Co., 62 A.D.2d 1040, lv denied 45 N.Y.2d 707; Matter of Boston Old Colony Ins. Co. [Martin], 34 A.D.2d 776), in this case the petitioner's application for a stay preceded its involvement in the proceedings (e.g., the selection of the arbitrators). In addition, in its correspondence with the American Arbitration Association the petitioner consistently and explicitly reserved its rights.
Moreover, there was no explicit and unequivocal agreement to arbitrate (Matter of Waldron [Goddess], 61 N.Y.2d 181). In fact, the provision in the contract that called for arbitration of disputes between the parties was specifically deleted by a supplemental agreement. Thus, the petitioner may not be compelled to arbitrate (see, Matter of Waldron [Goddess], supra). Mollen, P.J., Thompson, Bracken and Kunzeman, JJ., concur.