Respondent. No. 5688/03. June 12, 2003.
JAMES P. DOLLARD, J.
**1 The underlying action in this matter was commenced in the Civil
Court of the City of New York, County of Queens under Index No.
62675/00 on or about August 23, 2000 for breach of a standard alarm
lease agreements dated April 4, 2000 and August 16, l996.
There was some underlying motion practice in Civil Court and on
October 24, 2002 the plaintiff Davis Alarm Inc. in that Civil Court
action moved for an order striking defendant's jury demand and
directing that the case be placed on the calendar for a non-jury
trial. That motion resulted in an order by Hon. Anthony V. Gazzara,
JCC which stated "the motion is granted to the extent that
defendant's jury demand is stricken, and this case any any
counterclaims are dismissed from this court and ordered to be
submitted to arbitration before the National Arbitration Association,
pursuant to the contract agreement." Devora and Nissan filed a Notice
of Appeal on January 8, 2003. Pursuant to the aforesaid order, Davis
Alarms, Inc. commenced an arbitration proceeding against Devora and
Nissan by serving them with a Demand for Arbitration on February 18,
Devora and Nissan now petition this Court for an Order staying the
arbitration proceeding and all proceedings therein pursuant to CPLR §
7503(b). Their argument is essentially that Davis waived its right to
arbitration "by embarking on an intense and aggressive motion
practice and discovery and inspection" and that there was no ironclad
binding arbitration. CPLR § 7503(b) addresses applications to stay
arbitration. It reads in relevant part that when "a party who has not
participated in the arbitration and who has not made or been served
with an application to compel arbitration, may apply to stay
arbitration on the ground that a valid argument was not made ..."
However, the Civil Court has ordered that the matters at issue
between the parties be submitted to arbitration (See New York City
Civil Court Act, Section 206(a)). That order is res adjudicata.
Devora Jewelry, Inc. v. Davis Alarm, Inc.
7 Misc.3d 1005(A), 2003 WL 24032986 (N.Y.Sup.), 2003 N.Y. Slip Op.
51753(U) Unpublished Disposition
END OF DOCUMENT