Mechtronics Corp. v. Kirchhoff-Consigli Construction Management, LLC , 144 A.D.3d 688 ( 2016 )

Matter of Mechtronics Corp. v Kirchhoff-Consigli Constr. Mgt., LLC (2016 NY Slip Op 07195)

Matter of Mechtronics Corp. v Kirchhoff-Consigli Constr. Mgt., LLC

2016 NY Slip Op 07195

Decided on November 2, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 2, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.

2014-08357
(Index No. 606/14)

[*1]In the Matter of Mechtronics Corporation, appellant,

v

Kirchhoff-Consigli Construction Management, LLC, respondent.

John G. Fellinger, New York, NY, for appellant.

Hinckley, Allen & Snyder LLP, Albany, NY (James J. Barriere and Chad J. Caplan of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated June 19, 2014, which denied the petition to permanently stay arbitration and granted the respondent's cross motion to compel arbitration.

ORDERED that the order is affirmed, with costs.

The petitioner commenced an arbitration proceeding against the respondent, its general contractor on a construction project, in accordance with the terms of the parties' contract, which contained a broad arbitration clause. The respondent appeared in the arbitration and asserted counterclaims, an arbitrator was selected, discovery was conducted, and hearing dates were agreed upon. Thereafter, the petitioner commenced this proceeding to permanently stay the arbitration, contending that it had learned during discovery that the respondent fraudulently misrepresented and/or concealed material facts concerning the scope of the work to be performed pursuant to the contract.

The Supreme Court properly denied the petition to permanently stay arbitration and granted the cross motion to compel arbitration. Pursuant to CPLR 7503(b), "a party who has not participated in the arbitration . . . may apply to stay arbitration." The petitioner's initiation of and participation in the arbitration proceeding precludes it from seeking a stay (see N.J.R. Assoc. v Tausend, 19 NY3d 597, 602; Stone v Noble Constr. Mgt., Inc., 116 AD3d 838, 839).

CHAMBERS, J.P., DICKERSON, MILLER and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court