CHAMPION v. MERLEX AUTO GROUP TT (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Merlex Auto Group appeals from an order of the Supreme Court, Queens County (Phillip Hom, J.), entered September 27, 2024.  The order, insofar as appealed from, denied that defendant's motion pursuant to CPLR 7503(a) to compel arbitration and to stay the action pending arbitration.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

In April 2020, the plaintiff and the defendant Merlex Auto Group (hereinafter Merlex) entered into a sale contract pursuant to which the plaintiff purchased a certain vehicle from Merlex.  In March 2022, the plaintiff commenced this action against Merlex, among others, to recover damages for personal injuries he allegedly sustained in September 2020, when the vehicle caught fire.  In July 2022, Merlex answered, asserting, inter alia, certain cross-claims, and the parties participated in discovery over an approximately 18–month period.  In January 2024, Merlex moved pursuant to CPLR § 7503(a) to compel arbitration and to stay the action pending arbitration.  In an order entered September 27, 2024, the Supreme Court, among other things, denied the motion.  Merlex appeals.

The right to arbitrate, like any other contractual right, may be modified, waived, or abandoned (see Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 272).  “[T]here is no inflexible or mechanical rule as to what constitutes a waiver of the right to arbitrate.  Rather, determination of the issue depends on the facts and circumstances of each particular case ․ Among the factors to be considered are the extent of the party's participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced” (Willer v. Kleinman, 114 AD3d 850, 851 [internal quotation marks omitted];  see Sherrill v. Grayco Bldrs., 64 N.Y.2d at 272;  Arnav Indus.  Inc. Profit Sharing Plan & Trust v 3449–3461 Hamilton Ft, LLC, 237 AD3d 786, 790).

Here, it is undisputed that Merlex failed to raise its purported right to arbitration as a defense in its answer, participated in preliminary and compliance conferences, affirmatively declined referral to alternative dispute resolution in discovery stipulations, engaged in discovery, including written disclosures and expert inspection of the subject vehicle, and delayed its request for arbitration for approximately 18 months after filing its answer.  Under these circumstances, Merlex's conduct was inconsistent with an intent to arbitrate and, therefore, the Supreme Court properly determined that Merlex waived its right to arbitration (see DeSapio v. Kohlmeyer, 35 N.Y.2d 402, 405–406;  Friedman v. CYL Cemetery, Inc., 99 AD3d 857, 858;  cf.  Byrnes v. Castaldi, 72 AD3d 718, 720).  “The courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create [a] unique structure combining litigation and arbitration” (DeSapio v. Kohlmeyer, 35 N.Y.2d at 406;  see Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260, 263).

The parties' remaining contentions either are improperly raised for the first time on appeal or need not be considered in light of our determination.

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.