Opinion
May 27, 1986
Appeal from the Supreme Court, Nassau County (Burke, J.).
Judgment affirmed insofar as appealed from, with costs.
While the plaintiff has established that the claim it seeks to arbitrate is distinguishable from the claim upon which the instant action is based (see, Sherrill v Grayco Bldrs., 64 N.Y.2d 261; Denihan v Denihan, 34 N.Y.2d 307), the taking of extensive depositions by the plaintiff in a lawsuit between the parties, which inquired into issues concerning the claim it seeks to arbitrate, manifested an affirmative acceptance of the judicial forum.
"`The courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration'" (Sherrill v Grayco Bldrs., supra, p 274, quoting from De Sapio v Kohlmeyer, 35 N.Y.2d 402, 406). The plaintiff's action constituted a waiver of its right to arbitration. Bracken, J.P., Brown, Weinstein and Spatt, JJ., concur.