Commander Oil Corp. v. Shapiro ( 1997 )

—In a shareholder’s derivative action, the plaintiffs appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Murphy, J.), entered July 5, 1996, as (1) declined to refer to arbitration any issues pertaining to the validity of the elections of directors and officers of the plaintiff corporation, and (2) granted the defendants’ cross motion for partial summary judgment declaring that (a) the Notices of Special Annual Meeting of the Shareholders and Meeting of the Directors dated September 15, 1995, are valid, and (b) the election of directors and officers of the plaintiff corporation held on September 27, 1995, are legal and valid.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

The plaintiffs waived their right to arbitration of the issue of the validity of the elections when they commenced this lawsuit. The plaintiff Joseph Shapiro manifested a preference to litigate his claims which was clearly inconsistent with his later contention that these claims should be settled by arbitration. Thus, he thereby elected to litigate rather than arbitrate (see, Sherrill v Grayco Bldrs., 64 NY2d 261; see also, De Sapio v Kohlmeyer, 35 NY2d 402; Levkoff-Sennet Partnership v Levkoff, 154 AD2d 352).

The plaintiffs’ remaining contentions are without merit. Bracken, J. P., Sullivan, Santucci and Luciano, JJ., concur.