Ginsburg v. Carrin

— In an action for a judgment declaring the rights of the parties under a written agreement, the plaintiff appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered December 23, 1987, which, inter alia, directed the parties to resume and complete an arbitration proceeding and stayed the instant action pending the issuance of an arbitration award therein.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contentions, we conclude that the defendant did not waive his right to arbitration by his actions during the arbitration proceeding. The defendant’s actions did not manifest a preference clearly inconsistent with his present claim that the parties were obligated to settle their differences by arbitration (cf., Sherrill v Grayco Bldrs., 64 NY2d 261, 272; Matter of Zimmerman [Cohen,] 236 NY 15, 19). Accordingly, the court was correct in directing the parties to resume and complete the prior arbitration proceeding, and in staying the instant action pending the outcome of that proceeding.

We have considered the plaintiff’s remaining contentions and find them to be without merit. Mangano, J. P., Brown, Kunzeman and Kooper, JJ., concur.