Cunningham v. Horning Construction , 765 N.Y.S.2d 295 ( 2003 )

Appeal from that part of an order of Supreme Court, Monroe County (Fraise, J.), entered February 4, 2003, that granted the motion of defendant A.A.C. Contracting, Inc. seeking a permanent stay of arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted the motion of defendant A.A.C. Contracting, Inc. (AAC) seeking a permanent stay of arbitration. As the court properly determined, defendant Horning Construction (Horning) waived its right to arbitrate its claim against AAC by asserting a cross claim against AAC in which it sought recoupment of the same funds sought in its demand for arbitration (see generally De Sapio v Kohlmeyer, 35 NY2d 402, 405 [1974]). Moreover, the demand for arbitration was not made until two years after the interposition of the cross claim. Where, as here, the “participation [of Horning] in the lawsuit manifests an affirmative acceptance’ of the judicial forum, with whatever advantages [the judicial forum] may offer in the particular case, [its] actions are then inconsistent with [its] later claim that only the arbitral forum is satisfactory” (id.). Present — Green, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.