You are here: / / “Common Law Arbitration” Explained/”Common Law Arbitration” Waived by Seek...
,

“Common Law Arbitration” Explained/”Common Law Arbitration” Waived by Seeking Relief in a Counterclaim

The Second Department explained “common law arbitration,” i.e., an oral agreement to arbitrate, and determined defendant had waived the agreement to arbitrate by raising a counterclaim which related to the subject of the agreement to arbitrate:

Although there was no written agreement to arbitrate in this case, where one party demands arbitration, and the other party accepts the demand, an oral agreement to arbitrate may be formed … . Oral agreements to arbitrate are not covered by CPLR article 75, and are referred to as “common-law arbitration” agreements… . * * *However, the defendants, by their conduct in this lawsuit, waived arbitration. As this Court explained in Reynolds & Reynolds Co., Automotive Sys. Div. v Goldsmith Motor Corp. (251 AD2d 312, 313),”[t]here is no inflexible or mechanical rule as to what constitutes a waiver of the right to arbitrate. Rather, determination of the issue depends on the facts and circumstances of each particular case . . . Among the factors to be considered are the extent of the party’s participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced”… . Willer v Kleinman, 2014 NY Slip Op 01164, 2nd Dept 2-19-14

 

You might also like
THE BANK’S MOTION TO RESTORE THE 2009 FORECLOSURE ACTION WHICH HAD BEEN ADMINISTRATIVELY, BUT NOT FORMALLY, DISMISSED SHOULD HAVE BEEN GRANTED; THE BANK HAD PREVIOUSLY STATED ITS INTENTION TO DISCONTINUE THE 2009 FORECLOSURE BUT THE MOTION TO RESTORE WAS NOT PRECLUDED BY THE JUDICIAL ESTOPPEL DOCTRINE (SECOND DEPT).
THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT).
THERE WERE DISPUTED FACTS CONCERNING WHETHER DEFENDANT BREACHED THE COOPERATION AGREEMENT; THE JUDGE SHOULD HAVE HELD A HEARING TO RESOLVE THE DISPUTED FACTS; DEFENDANT’S CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).
Reapplication for Visitation Can Not Be Conditioned on Counseling or Treatment
MUNICIPAL EMERGENCY PERSONNEL WERE ENGAGED IN A GOVERNMENTAL FUNCTION RESPONDING TO PLAINTIFFS’ 911 CALL AND THERE WAS NO SPECIAL RELATIONSHIP WITH THE PLAINTIFFS; MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE, WRONGFUL DEATH ACTION PROPERLY GRANTED (SECOND DEPT).
Under the Facts, a Stairwell Partially Covered by a Piece of Wood Was Not an Unreasonably Dangerous Condition
LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE.
SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Questions of Fact Raised About Whether Insufficient Warnings On Flammable Floor... Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained