Matter of Devora Jewelry Inc. v Davis Alarm Inc.

[*1] Matter of Devora Jewelry Inc. v Davis Alarm Inc. 2003 NY Slip Op 51753(U) Decided on June 12, 2003 Supreme Court, Queens County Dollard, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2003
Supreme Court, Queens County

Application of Devora Jewelry, Inc., d/b/a NISSAN JEWELERS and NASSIR MANZOROLHAGH, Petitioner, For an Order Pursuant to Article 75 of the CPLR Staying Arbitration of a Certain Controversy,

against

Davis Alarm, Inc., Respondent.



5688/03

James P. Dollard, J.

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, 2003.

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.

Dated: June ,2003

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J.S.C.