Kobler v. Royal Alliance Associates, Inc.

Orders, Supreme Court, New York County (Lorraine Miller, J.), entered on or about January 21, 1999, which denied the motion of Royal Alliance Associates, Inc. (Royal) seeking to compel arbitration of the affirmative cross claims of defendant-respondent Warren T. Busch against Royal, and entered April 12, 1999, appealed from to the extent that it purports to stay a newly commenced arbitration proceeding before the National Association of Securities Dealers, Inc. (NASD) entitled Royal Alliance Associates, Inc. v Warren T. Busch, unanimously affirmed, with costs. Appeal from the ex parte order, same court and Justice, entered on or about May 4, 1999, unanimously dismissed, without costs, as taken from a nonappealable paper. Even if Busch and Royal had agreed to submit the matters raised in the Busch cross claims to arbitration, and it would appear that they did not so agree, it would nonetheless be the case, as the motion court held, that any right Royal may have had to compel arbitration of the Busch cross claims was waived by Royal’s affirmative assertion and prosecution, in the very action it seeks to stay, of its own cross claims against Busch for contribution and indemnification (see, De Sapio v Kohl-meyer, 35 NY2d 402, 405-406; see also, Bucci v McDermott, 156 AD2d 328; Gabor v Spicyn, 99 AD2d 1000; Sullivan v Kisly, 93 AD2d 783). Issuance of the April order was not, as Royal contends, 676 precluded by the interim order of this Court, staying enforcement of the January order and “all further proceedings”, since the April order was precipitated by the affirmative act of Royal in filing the Busch NASD arbitration seeking contribution and/or indemnification as against Busch — the same claims that the January order found had been waived by Royal’s active participation in the litigation — notwithstanding, and in contravention, of the January order, which unequivocally ruled that Royal had waived its right to compel Busch to arbitrate his cross claims as against Royal. Concur — Sullivan, J. P., Nardelli, Wallach, Andrias and Friedman, JJ.