Q: Will participating in legal proceeding bar an arbitration award from being confirmed by the court?
If action taken by a party to case (such as interposing a
cross claim or procuring a deposition of
plaintiff) waives their contractual right to compel arbitration, does that also cause that if they do continue at arbitration an arbitration award on that matter cannot be confirmed by the court (as provided in cplr 7510)?
A:
You are quite correct regarding the waiver of arbitration: any act that is inconsistent with the agreement to arbitrate will waive that right. While the simple act of interposing a cross-claim may not, in all circumstances, waive the right to arbitrate, taking a deposition conjoined with the submission of pleadings has been found by Courts to be sufficient to infer a waiver.
Your second question is a good one but is somewhat ambiguous. There are two types of opposition to a motion to confirm: one after the party has participated in the arbitration and the second, where he has not participated. If the "litigating party" (who, by so doing, is deemed to waive his right to arbitrate) then goes and submits the dispute to arbitration but the other party (presumably the one who instituted the litigation, the "commencer") does not participate in the arbitration, the commencer can successfully move to vacate in New York under 7510. The participation in the arbitration by the commencer could be seen by the Court as a waiver (of the waiver) or consent to arbitrate.
The better practice, however, assuming that you are the party "commencer", would be to make a motion in the case to the Court asking for an Order declaring that the "litigating party" has waived his right to arbitrate. It would be made as a motion to stay Arbitration under CPLR 7503.
Jack Mevorach agrees with this answer
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