Summary
applying "JAMS" rules that were incorporated into an arbitration clause and concluding that they "confer on the arbitrators the power to resolve arbitrability"
Summary of this case from Revis v. SchwartzOpinion
302N, 650531/15.
05-31-2016
SKYLINE STEEL, LLC, Petitioner–Appellant, v. PILEPRO LLC, et al., Respondents–Respondents.
Winston & Strawn LLP, New York (Aldo A. Badini of counsel), for appellant. Law Office of Paul E. Dans, New York (Paul Edouard Dans of counsel), for respondents.
Winston & Strawn LLP, New York (Aldo A. Badini of counsel), for appellant. Law Office of Paul E. Dans, New York (Paul Edouard Dans of counsel), for respondents.
TOM, J.P., ANDRIAS, MOSKOWITZ, RICHTER, JJ.
Opinion Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 15, 2015, which denied the petition to stay arbitration and granted the cross motion to compel arbitration and dismiss the proceeding, unanimously affirmed, with costs.
Both the arbitration clause and the JAMS rule incorporated therein confer on the arbitrators the power to resolve arbitrability (see Matter of Gramercy Advisors LLC v. J.A. Green Dev. Corp., 134 A.D.3d 652, 653, 23 N.Y.S.3d 38 [1st Dept.2015] ). These provisions, governing the specific issue, take precedence over the arbitration clause's generic incorporation of the “New York statutes governing arbitration” (cf. Matter of ROM Reins. Mgt. Co., Inc. v. Continental Ins. Co., Inc., 115 A.D.3d 480, 481–482, 982 N.Y.S.2d 73 [1st Dept.2014] ). The issues of whether the parties manifested an intent that the arbitration clause survive termination of the settlement agreement containing it (see Matter of Baker v. Bajorek, 133 A.D.3d 421, 421, 18 N.Y.S.3d 530 [1st Dept.2015] ) and whether the agreement was induced by fraud (see McDonald v. McBain, 99 A.D.3d 436, 437, 952 N.Y.S.2d 486 [1st Dept.2012], lv. denied 21 N.Y.3d 854, 2013 WL 1831635 [2013] ) are also to be resolved by the arbitrators.
The question of whether respondents waived their right to arbitrate by their litigation-related conduct is for the court to decide (see Cusimano v. Schnurr, 26 N.Y.3d 391, 401 n. 3, 23 N.Y.S.3d 137, 44 N.E.3d 212 [2015] ; Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 272, 486 N.Y.S.2d 159, 475 N.E.2d 772 [1985] ). Whether analyzed under the CPLR or the Federal Arbitration Act, respondents' conduct, viewed in its entirety, does not constitute a waiver of arbitration. Throughout the parties' dispute, respondents repeatedly made clear their position that the matter belongs in arbitration. In light of this, respondents' assertion of counterclaims in a separate federal action, standing alone, is insufficient to establish that they waived arbitration (see Singer v. Seavey, 83 A.D.3d 481, 482, 923 N.Y.S.2d 29 [1st Dept.2011] ; Lodal, Inc. v. Home Ins. Co., 309 A.D.2d 634, 766 N.Y.S.2d 19 [1st Dept.2003] ). Petitioner points to no record proof that respondents took any steps to pursue these counterclaims, which have been dismissed by the federal court.
We have considered the parties' other contentions and find them unavailing.