Opinion
2015-05-21
Nicoletti Gonson Spinner LLP, New York (Benjamin N. Gonson of counsel), for appellants. White and Williams LLP, New York (Sarah R. Connelly of counsel), for respondent.
Nicoletti Gonson Spinner LLP, New York (Benjamin N. Gonson of counsel), for appellants. White and Williams LLP, New York (Sarah R. Connelly of counsel), for respondent.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered January 22, 2015, denying the petition to stay arbitration on statute of limitations grounds, and dismissing the proceeding brought pursuant to CPLR article 75, unanimously affirmed, with costs.
Petitioners participated in the arbitrator selection process, even though they were undoubtedly aware of their statute of limitations claim. Under these circumstances, the court correctly determined that petitioners participated in the arbitration and therefore are precluded from seeking a stay on statute of limitations grounds pursuant to CPLR 7503(b) ( see Matter of Allstate Ins. Co. v. Khait, 227 A.D.2d 551, 643 N.Y.S.2d 163 [2d Dept.1996]; compare Cybex Intl. v. Fuqua Enters., 246 A.D.2d 316, 316–317, 667 N.Y.S.2d 348 [1998] [the petitioner did not waive its right to seek a stay of arbitration by participating in arbitral discovery and the selection of an arbitrator before it had received detailed specification of the respondent's claims] ). Although petitioners have waived their ability to have the courts determine the statute of limitations issue, the issue may be determined by the arbitrators.
We have considered petitioners' remaining arguments, including that this Court had previously determined the participation issue ( see115 A.D.3d 480, 982 N.Y.S.2d 73 [1st Dept.2014] ), and find them unavailing.