70 A.D.2d 635 | N.Y. App. Div. | 1979
Lead Opinion
— Appeal by A. Leo Nash Steel Corp., as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated September 7, 1978, as (1) granted the motion of D. M. C. Construction Corp. for a change of venue, of a proceeding commenced by A. Leo Nash Steel Corp. to confirm an arbitrator’s award, from the Supreme Court, Erie County, to the Supreme Court, Kings County, and (2) directed that a hearing be held on D. M. C. Construction Corp.’s motion to vacate the award upon the ground that one of the arbitrators was biased. Order reversed insofar as appealed from, with $50 costs and disbursements, and the motion for a change of venue and the motion to vacate the arbitrator’s award are denied, without prejudice to renewal in Erie County. D. M. C. Construction Corp. (hereinafter D. M. C.) is a general contractor with offices in Brooklyn. A. Leo Nash Steel Corp. (hereinafter Nash Steel) is a Massachusetts corporation with its principal place of business in that State. In September, 1974 D. M. C., as general contractor, and Nash Steel, as a subcontractor, entered into an agreement whereby the latter agreed to perform certain steel work in connection with the construction of a building known as the Niagara Geriatric Center in Niagara Falls, New York. In January, 1975 Nash Steel completed its work and sought payment. D. M. C. demanded that Nash Steel reduce its bill by approximately $60,000 upon the ground that Nash Steel’s tardy. completion of the work had damaged D. M. C. in that amount. This demand was refused by Nash Steel and D. M. C. commenced an action in the Supreme Court, Kings County, to recover damages from Nash Steel for breach of contract. Thereafter, Nash Steel filed a mechanic’s lien against the property and brought suit to foreclose its lien in the Supreme Court, Niagara County. At the same time, Nash Steel served a demand for arbitration upon D. M. C. pursuant to a broad arbitration clause contained in the September, 1974 contract between the parties. CPLR 7503 (subd [a]) provides that where an issue claimed to be arbitrable is involved in a pending action, an application to either stay or compel arbitration must be made in the pending action rather than by means of a separate special proceeding. D. M. C. disregarded the mandate of the statute despite (1) the pendency of the Niagara County action by Nash Steel to foreclose its mechanic’s lien and (2) the pendency of its own Kings County action to recover for breach of contract. Instead, D. M. C. commenced a separate special proceeding by service of an order to show cause and petition for a permanent stay of arbitration (Kings County Index No. 6098/
Lead Opinion
dissents and votes to affirm the order insofar as appealed from, with the following memorandum, in which Mollen, P. J., concurs: Special Term, Kings County, (1) granted the motion of D. M. C. Construction Corp. (D. M. C.) for a change of venue of a proceeding commenced by Nash Steel to confirm an arbitrator’s award from the Suprme Court, Erie County, to the Supreme Court, Kings County, and (2) directed that a hearing be held on D. M. C.’s motion to vacate the arbitration award upon the ground that one of the arbitrators was biased. In reversing the order insofar as appealed from, the majority holds that D. M. C.’s motion for a change of venue and D. M. C.’s motion to vacate should have been denied without prejudice to
In view of D. M. C.’s conceded residence in Kings County and the priorities listed in CPLR 7502 (subd [a]) regarding venue, it is totally irrelevant to this discussion that the arbitration hearing was conducted in Erie County.