N.J.R. Associates, etc., Petitioner–Respondent, v. Nicole Tausend, etc., Respondent–Appellant.

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

N.J.R. Associates, etc., Petitioner–Respondent, v. Nicole Tausend, etc., Respondent–Appellant.

4908

Decided: April 26, 2011

Tom, J.P., Andrias, Friedman, Abdus–Salaam, Román, JJ. Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for appellant. Wilk Auslander LLP, New York (Alan D. Zuckerbrod of counsel), for respondent.

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Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered November 15, 2010, which, to the extent appealed from, granted the petition to stay arbitration of respondent's fraud-based counterclaims, denied respondent's motion to dismiss the petition, and denied respondent's request for sanctions, unanimously modified, on the law, the petition denied, and the motion to dismiss the petition granted, and otherwise affirmed, without costs.

Respondent's filing of a CPLR article 75 petition to stay the arbitration sought by petitioner on the grounds that the arbitration agreement was invalid due to fraud did not constitute a waiver of her right to arbitrate her counterclaims (see Matter of Heilman [Casella], 188 A.D.2d 294 [1992], lv denied 82 N.Y.2d 652 [1993] ).   Given that petitioner initiated the arbitration and successfully moved to dismiss respondent's petition to stay the arbitration, petitioner is not entitled to stay the arbitration of respondent's counterclaims on statute of limitations grounds (see CPLR 7503[b];  Morfopoulos v. Lundquist, 191 A.D.2d 197 [1993] ).

Sanctions against petitioner are not warranted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK