Opinion
June 30, 1966
Order, entered April 25, 1966, unanimously reversed and vacated, on the law and the facts, with $30 costs and disbursements to petitioner-appellant; motion by respondent for the appointment by the court of an arbitrator in behalf of petitioner, denied; and the appointment by the petitioner of Herbert Lee Seward as its arbitrator, confirmed. The designation by the petitioner of an arbitrator as required by the contract between the parties was delayed pending a proceeding instituted by the petitioner for a stay of arbitration and pending the determination of an appeal from an order denying the stay, and it does not appear that the petitioner's default, if any, in naming its arbitrator, was deliberately or willfully suffered. The right to appoint an arbitrator is a substantial right ( Matter of Lipschutz [ Gutwirth], 304 N.Y. 58, 65); and, under the circumstances here, we conclude that it was improper to unconditionally deprive petitioner of this right. (See Matter of Ferris [ Perkins], 257 App. Div. 949; Matter of Utility Oil Corp., 10 F. Supp. 678.)
Concur — Stevens, J.P., Eager, Steuer and Capozzoli, JJ.