McGrath v. McGrath

Full title: DONALD G. McGRATH, Appellant, v. JOAN C. McGRATH, Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 27, 1996

231 A.D.2d 862 (N.Y. App. Div. 1996)

648 N.Y.S.2d 404

Opinion

September 27 1996.

Order unanimously reversed on the law without costs and motion denied.

Before: Present — Denman, P.J., Green, Callahan, Doerr and Davis, JJ.

Memorandum:

Supreme Court erred in granting defendant's motion to compel arbitration. Defendant had served neither a demand for arbitration nor a notice of intention to arbitrate, as required by CPLR 7503 (c). Additionally, because there was no pending action before the court, defendant was required to commence a special proceeding to compel arbitration ( see, CPLR 7502 [a]; Matter of State-Wide Ins. Co. [Lopez], 30 AD2d 694). (Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J. — Arbitration.)