Opinion
No. 4908.
April 26, 2011.
Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered November 15, 2010, which, to the extent appealed from, granted the petition to stay arbitration of respondent's fraud-based counterclaims, denied respondent's motion to dismiss the petition, and denied respondent's request for sanctions, unanimously modified, on the law, the petition denied, and the motion to dismiss the petition granted, and otherwise affirmed, without costs.
Ingram Yuzek Gainen Carroll Bertolotti, LLP, New York (John G. Nicolich of counsel), for appellant.
Wilk Auslander LLP, New York (Alan D. Zuckerbrod of counsel), for respondent.
Before: Tom, J.P., Andrias, Friedman, Abdus-Salaam and Román, JJ.
Respondent's filing of a CPLR article 75 petition to stay the arbitration sought by petitioner on the grounds that the arbitration agreement was invalid due to fraud did not constitute a waiver of her right to arbitrate her counterclaims ( see Matter of Heilman [Casella], 188 AD2d 294, lv denied 82 NY2d 652). Given that petitioner initiated the arbitration and successfully moved to dismiss respondent's petition to stay the arbitration, petitioner is not entitled to stay the arbitration of respondent's counterclaims on statute of limitations grounds ( see CPLR 7503 [b]; Morfopoulos v Lundquist, 191 AD2d 197).
Sanctions against petitioner are not warranted.
[Prior Case History: 2010 NY Slip Op 32936(U).]