Opinion
December 26, 1991
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Callahan, J.P., Boomer, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court erred in determining the merits of respondent's claim, which is presently before an arbitrator, that the partnership agreement was invalid and unenforceable. Because respondent failed to apply for a stay of arbitration within 20 days after service of the notice of intention to arbitrate, he was barred from seeking judicial intervention in the arbitration proceeding (see, Dra-Po Constr. Co. v Riso Sons Co., 149 A.D.2d 651, 652; Matter of Allstate Ins. Co. [Jones-Barnett], 143 A.D.2d 570). At that juncture Supreme Court was without authority to become involved in the arbitration proceeding until the matter had concluded (see, Susquehanna Val. Cent. School Dist. v Susquehanna Val. Teachers' Assn., 101 A.D.2d 933, lv dismissed 63 N.Y.2d 610). Consequently, it was impermissible for Supreme Court to "express any view as to 'whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute'. (CPLR 7501.)" (Matter of Spychalski [Continental Ins. Cos.], 45 N.Y.2d 847, 849.) Accordingly, we modify Supreme Court's order by deleting the second ordering paragraph.