IN RE: PEERS BUSINESS INC. (2026)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about July 1, 2026, which continued a temporary restraining order dated May 16, 2026, until further order of the court, unanimously reversed, on the law, with costs, and the temporary restraining order dissolved.

Petitioner Peers Business Inc. cannot avail itself of CPLR 7503(b) because it has participated in the arbitration it seeks to stay by taking part in an administrative conference with the American Arbitration Association, appointing its arbitrator, and filing an answer (see Matter of Flintlock Constr.  Servs., LLC v Weiss, 122 AD3d 51, 56 [1st Dept 2014], appeal dismissed 24 NY3d 1209 [2015];  Matter of JJF Assoc., LLC v. Joyce, 59 AD3d 296, 297 [1st Dept 2009], lv. denied 13 NY3d 706 [2009] ).

Even if Peers Business participated in the arbitration under protest, it still could not avoid arbitration because a party must seek judicial relief “even if it believes that its request for such an interim stay will result in summary denial” (Matter of Commerce & Indus.  Ins. Co. v Nester, 90 N.Y.2d 255, 264 [1997] ).  Here, a federal court advised Peers Business in December 2025 that it was required to move to stay the arbitration.  Yet, Peers Business did not do so until April 2026, by which time it had already participated in the arbitration proceedings.  Its belief that respondents-appellants had improperly removed this case to federal court did not prevent it from asking that court to stay the arbitration in its November 2025 and April 2026 letters.

Moreover, Peers Business and its predecessor were signatories to the shareholder agreements containing the arbitration clauses.  As such, its reliance on Matter of IMG Publ. [Viesti] (170 A.D.2d 268 [1st Dept 1991] ) is misplaced, and, in any event, that decision predates the Court of Appeals' decision in Commerce.

In light of the above, we need not reach the parties' remaining arguments.