Brooklyn, NY asked in Arbitration / Mediation Law for New York

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)?

Related Topics:
1 Lawyer Answer
David H. Relkin
David H. Relkin
  • Arbitration & Mediation Lawyer
  • Manhasset, NY
  • Licensed in New York

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

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.