Citation Numbers: 11 Misc. 2d 766
Judges: Benvenga
Filed Date: 12/2/1955
Status: Precedential
Modified Date: 2/5/2022
Application for an order directing that arbitration be continued.
In June, 1955, after differences had arisen between the parties, petitioner brought a proceeding to dissolve their jointly-owned corporation. Respondent opposed the application, declaring that if petitioner ‘ ‘ has any dispute I am perfectly willing to arbitrate it.” The motion was denied (Matter of Duchovny, N. Y. L. J., Oct. 7, 1955, p. 7, col. 4).
Petitioner then served a demand for arbitration. This application was opposed by respondent on the ground that, by instituting the proceeding to dissolve the corporation, petitioner had waived his right to arbitration. It was held that respondent was “ estopped ” from objecting to arbitration (Matter of World View Tours, N. Y. L. J., Aug. 2, 1955, p. 2, col. 8).
It is quite evident that respondent has taken inconsistent positions, and has acted in entire bad faith. She opposed the application to dissolve the corporation, declaring that she was ‘ ‘ perfectly willing ’ ’ to arbitrate the dispute. Then, upon service of a demand for arbitration, she opposed arbitration on the ground that the petitioner had waived his right to arbitration. And now she takes the position that the matter in dispute is not arbitrable.
I believe that, by her conduct throughout, respondent is estopped from raising the question of whether the dispute is arbitrable. Clearly, if the dispute does not come within the strict letter of the arbitration agreement, it comes within the spirit. She took the position from the outset that the dispute ivas arbitrable, and she should be held to that position and estopped from asserting other Avise.
The motion is accordingly granted. This disposition is without prejudice to a renewal of the proceeding to dissolve the corporation, in accordance with section 103 of the General Corporation Law, if petitioner so elects.
Settle order.