IN RE: TUCKER ANTHONY (1999)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: TUCKER ANTHONY, INC., et al., appellants, v. BLUNT, ELLIS & LOEW, INC., et al., respondents.

Decided: April 05, 1999

LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and WILLIAM D. FRIEDMANN, JJ.

Joseph D'Elia, Huntington, N.Y. (Paul L. Meli and Justice Sacca of counsel), for appellants. Ruskin, Moscou, Evans & Faltischek, P.C., Mineola, N.Y. (Jeffrey M. Schlossberg of counsel) and Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, Mn., for respondent LaRoy A. Luther (one brief filed).

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioners appeal from an order of the Supreme Court, Nassau County (Phelan, J.), entered January 2, 1998, which denied the petition.

ORDERED that the order is affirmed, with costs.

We agree that the petitioners participated in the arbitration process thereby manifesting a preference clearly inconsistent with their present effort to stay arbitration (cf., DeSapio v. Kohlmeyer, 35 N.Y.2d 402, 405, 362 N.Y.S.2d 843, 321 N.E.2d 770).

MEMORANDUM BY THE COURT.

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