Appeal from an order of the Justice Court of the Town of Southold, Suffolk County (Rudolph H. Bruer, J.), dated July 19, 2011.
Cleaves Point Prop. Owners' Assn. v Crescent Beach Condominium
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2013
PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The order granted defendant's motion to stay the action.
ORDERED that the order is affirmed, without costs
In this action to recover an annual assessment for road maintenance pursuant to a 1978 agreement between the parties, defendant moved to stay the action, pursuant to CPLR 7503 (a), on the ground that the 1978 agreement contains an arbitration clause governing the dispute. The Justice Court granted defendant's motion, and plaintiff appeals.
Defendant's motion was made pursuant to CPLR 7503 (a) and was granted on that ground. However, article 75 of the CPLR does not apply in the Justice Court (see UJCA 206 [b]). Therefore, the court had no power to decide the motion pursuant to CPLR 7503 (a). Instead, the Uniform Justice Court Act provides that, "[i]f it appears to the court that a genuine issue exists as to the arbitrability of the matter for which the action has been brought, the court shall stay the action until such issue has been resolved by a court of competent jurisdiction" (id.). In this case, defendant demonstrated a reasonable basis to believe that a genuine issue may exist as to the arbitrability of this matter, and so we find that ordering a stay of the action was appropriate (see David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, UJCA 206), albeit on a ground other than the one relied upon by the Justice Court.
Plaintiff's contention that defendant waived its right to invoke the arbitration clause by not explicitly raising that issue in its answer is unsupported (see Island Cash Register v Data Term. Sys., 244 AD2d 117, 120 ). "A waiver of the right to arbitrate requires an active participation in litigation or some other conduct inconsistent with an intent to preserve any issues for arbitration. Such a waiver must be based upon an intentional abandonment or relinquishment of a known right" (5 NY Jur 2d, Arbitration and Award § 103). In this case, defendant has shown no intentional abandonment of its right to arbitrate; all defendant has done is serve its answer, which does not assert any counterclaims, and make the instant motion. Moreover, defendant's counsel claims that she only served the answer after being told by the Justice Court that defendant still could move for a stay, thus indicating that it never intended for its answer to waive its right to seek arbitration.
Accordingly, the order is affirmed.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision ...