Opinion
February 8, 1994
Appeal from the Supreme Court, New York County (William P. McCooe, J.).
Although there is some question as to whether respondent Alma Realty, ostensibly the managing agent, executed the collective bargaining agreement in its own right so as to be bound as a principal, the claim is waived by respondent's failure to move to stay arbitration on that basis (Bevona v. Valencia, 191 A.D.2d 192), as well as its participation in the arbitration proceedings without raising the claim (Binghamton Civ. Serv. Forum v. City of Binghamton, 44 N.Y.2d 23, 29). With respect to the failure to notify counsel of the adjourned date, no request was made that counsel be notified separately from respondent itself, and no prejudice was shown. Our holding in Apollo Reproductions v. West 35th St. Assocs. ( 186 A.D.2d 52) is thus distinguishable. Moreover, respondent's counsel never averred that he was unaware of the adjourned date — only that notice had not been given. As there had been numerous prior defaults, and as the matter had been marked peremptory against respondent, it was not an abuse of discretion to deny a further adjournment (Bevona v. Emsof Realty Co., 160 A.D.2d 463).
Concur — Sullivan, J.P., Rosenberger, Kupferman and Ross, JJ.