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RESPONDENTS’ PARTICIPATION IN THE PORTION OF THE ARBITRATION WHICH DEALT WITH THE USE OF ESCROW FUNDS TO REPAIR CONDOMINIUM SWIMMING POOLS WAIVED ANY CHALLENGE TO THE ARBITRABILITY OF THE ISSUE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined respondents waived the ability to challenge the arbitrability of damage to swimming pools in this action seeking to use escrow funds for condominium repairs. The swimming pools were not on the “punch list” of items to be repaired using the escrow funds. But respondent Katz participated in the portion of the arbitration which focused on the repair of the pools:

It is well settled that “[a] party who actively participates in arbitration without seeking a stay pursuant to CPLR 7503 (b) waives the right to a judicial determination of the arbitrability of the dispute” … . There is no dispute that Katz participated in the first three arbitration hearings, at the second of which he attempted to submit Fuller’s report to address the issue regarding the swimming pools and, after the rejection of the report, he orally argued his position. The record is devoid of any request for a stay of any kind. Thus, Katz’s participation foreclosed respondents’ attack on the arbitrability of the pool repairs … . Matter of Kohn (Waverly Homes Dev. LLC), 2022 NY Slip Op 02177, Third Dept 3-31-22

​Practice Point: A party’s participation in the arbitration of an issue waives any right to a judicial determination the issue was not arbitrable.

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