Basil Castrovinci Associates, Inc. v. District 65 Pension Plan

In a proceeding pursuant to CPLR article 75 to stay arbitration, the petitioners appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), entered October 2, 2003, which, inter alia, denied their petition to stay arbitration, and granted the respondent’s motion to appoint a successor arbitrator to the extent of directing the appointment of a panel of [494] three arbitrators if the parties could not agree to the selection of a successor arbitrator within 30 days. Ordered that the order is affirmed, with costs. The Supreme Court providently exercised its discretion in directing the appointment of a panel of three arbitrators if the parties could not agree to the selection of a successor arbitrator within 30 days (see CPLR 7504; Matter of Delma Eng’g. Corp. [K&L Constr. Co.], 6 AD2d 710 [1958], affd 5 NY2d 852 [1958]). The forum the parties designated for arbitration failed when the only person they initially selected to arbitrate recused himself. The parties did not agree on the method for the appointment of a substitute arbitrator, and their promise to arbitrate was not so wedded to their selection of the initial arbitrator that his failure to complete his appointment destroyed their agreement (see CPLR 7504; Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 295-296 [1929]). Further, the appellants waived their remaining contentions by participating in the arbitration process before filing a petition for a stay (see CPLR 7503 [b]; Greenwald v Greenwald, 304 AD2d 790 [2003]; Matter of Tucker Anthony, Inc. v Blunt, Ellis & Loew, 260 AD2d 386 [1999]; Matter of Allstate Ins. Co. v Khait, 227 AD2d 551 [1996]). Florio, J.P., Ritter, Goldstein and Fisher, JJ., concur.