Newton v. Booras ( 1979 )

Hopkins, J.,

dissents and votes to affirm the judgment, with the following memorandum: The right of the petitioners under the contract to choose an arbitrator is substantial and should not be lost except for a compelling reason (see Matter of Lipschutz [Gutwirth], 304 NY 58, 65). The petitioners’ challenge to the arbitration instituted by the appellants on the ground of the lapse of the Statute of Limitations (see Newton v Booras, 65 AD2d 962) was brought within the time prescribed by statute (see CPLR 7503, subd [c]). The choice of an arbitrator was thereafter made by the petitioners shortly after the adverse determination by Special Term of their claim of untimeliness—a claim which cannot be said to be utterly baseless or advanced in bad faith. Hence, the default in appointment of an arbitrator by the petitioners within the time limit of the contract was neither willful nor in deliberate disregard of the contract and should not constitute a waiver of the right to choose an arbitrator (see Matter of Maizuru Shipbuilding & Eng. Co., 26 AD2d 541). The petitioners should not be put to the insoluble dilemma of either giving up their right to oppose arbitration or giving up their right to appoint an arbitrator.