Opinion
6304N 6304NA Index 653736/16
04-17-2018
BLACK RHINO INVESTMENTS LLC, et al., Plaintiffs–Respondents, v. John P. WILSON, Defendant–Appellant.
Victor M. Serby, Woodmere, for appellant. Lowenstein Sandler LLP, New York (Jeffrey J. Wild of counsel), for respondents.
Victor M. Serby, Woodmere, for appellant.
Lowenstein Sandler LLP, New York (Jeffrey J. Wild of counsel), for respondents.
Sweeny, J.P., Renwick, Mazzarelli, Kahn, Gesmer, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 10, 2017, which granted plaintiffs' motion to compel arbitration, unanimously reversed, on the law, without costs, and the motion denied. Order, same court and Justice, entered March 10, 2017, which, to the extent appealed from as limited by the briefs, denied defendant's motion to disqualify plaintiffs' counsel, unanimously affirmed, without costs.
Plaintiffs commenced this action upon an alleged oral agreement entered into in October 2015 involving the ownership of plaintiff Black Rhino and the licensing of defendant's intellectual property. Upon defendant's motion to dismiss the complaint, plaintiffs claimed for the first time that the controversy had to be arbitrated, pursuant to a separate agreement entered into in April 2015 involving services to be performed for Black Rhino by plaintiff Levitt. We find that plaintiffs waived their right, if any, to arbitration (see Cusimano v. Schnurr , 26 N.Y.3d 391, 400–401, 23 N.Y.S.3d 137, 44 N.E.3d 212 [2015] ; Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156, 159 [2d Cir.2010] ).
Supreme Court correctly concluded that counsel retained to represent Black Rhino did not represent defendant individually (see Campbell v. McKeon, 75 A.D.3d 479, 480–481, 905 N.Y.S.2d 589 [1st Dept. 2010], citing, inter alia, Talvy v. American Red Cross in Greater N.Y., 205 A.D.2d 143, 149, 618 N.Y.S.2d 25 [1st Dept. 1994], affd 87 N.Y.2d 826, 637 N.Y.S.2d 687, 661 N.E.2d 159 [1995] ).