OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with *1018costs to defendants-respondents, to the extent of vacating the stay as to defendant-respondent Marine Transport Overseas, Inc., and, as so modified, affirmed.

We are in agreement with the majority of the Appellate Division that defendant Atlanta Shipping Corp. did not waive its right to arbitrate the claims embraced by the fourth, fifth and sixth causes of action in plaintiffs complaint by asserting a counterclaim with respect to nonarbitrable causes of action. However, in ordering the parties to arbitrate their disputes, the courts below stayed the pending Supreme Court action not only as to Atlanta but as to defendant Marine Transport as well. Marine Transport is not a party to the arbitration agreement and will not be bound by the terms of any award rendered by the arbitrators. Accordingly, there was no basis for staying plaintiffs claims against Marine Transport and that portion of the stay should be vacated.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order modified, with costs to defendants-respondents, in accordance with the memorandum herein and, as so modified, affirmed.