Matter of Gemini Real Estate Advisors, LLC v Byron Realty I Corp., 2011 NY Slip Op 04397 [84 AD3d 673]

May 26, 2011

Appellate Division, First Department

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Olshan Grundman Frome Rosenzweig & Wolosky LLP, New York (Joshua S. Androphy and Thomas J. Fleming of counsel), for appellants. Davidson & Grannum, LLP, Orangeburg (Carlos Ricca of counsel), for respondent.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 14, 2011, denying the petition to stay arbitration, and dismissing the proceeding, unanimously affirmed, with costs.

Petitioners’ December 20, 2010 letter to the arbitrator, which requested that the arbitrator reopen the proceedings so that petitioners could present arguments on the merits, and which was sent before petitioners moved the court for relief, constitutes participation in the arbitration that precludes the grant of a stay ( see CPLR 7503 [b]; Matter of Commerce & Indus. Ins. Co. v Nester , 90 NY2d 255, 263 [1997]). Concur—Andrias, J.P., Friedman, Catterson, Renwick and DeGrasse, JJ.