Opinion
2021-05077 Index 653643/20
09-28-2021
In the Matter of Empire Core Group, LLC, Petitioner-Respondent, v. Perennial Painting and Cleaning LLC Doing Business as Perennial Construction Solutions, Respondent-Appellant. Appeal No. 14208 Case No. 2020-04476
Newman Ferrara LLP, New York (Gregory M. Dexter of counsel), for appellant. Wilson & Chan LLP, New York (Jeffrey L. Wilson of counsel), for respondent.
Newman Ferrara LLP, New York (Gregory M. Dexter of counsel), for appellant.
Wilson & Chan LLP, New York (Jeffrey L. Wilson of counsel), for respondent.
Before: Webber, J.P., Mazzarelli, González, Scarpulla, Pitt, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about October 7, 2020, which granted the petition to stay arbitration and denied respondent's motion to compel arbitration, unanimously affirmed, with costs.
Respondent's assertion of a counterclaim under the Prompt Payment Act (PPA) (General Business Law § 756 et seq .), in addition to its other, nonarbitrable, counterclaims, was "a positive and unequivocal election to ignore its contractual right to arbitration and to seek to resolve all of its claims in the court suit" (Matter of United Paper Mach. Corp. [Di Carlo], 19 A.D.2d 143, 145 [4th Dept 1963], affd 14 N.Y.2d 814 [1964]). The issues at the heart of the PPA counterclaim and the demanded arbitration are intertwined (see Matter of Allstate Ins. Co. v Howell, 151 A.D.3d 461, 461 [1st Dept 2017]; see also Denihan v Denihan, 34 N.Y.2d 307, 310 [1974]). Were both the court suit and the arbitration to proceed, the result might be "two contrary determinations," a result that should be avoided (Di Carlo, 19 A.D.2d at 145). Moreover, petitioner was prejudiced by the time and resources spent litigating its claims in court (see Cusimano v Schnurr, 26 N.Y.3d 391, 400 [2015]).