

Gibbs v Holland & Knight, LLP (2016 NY Slip Op 06670)





Gibbs v Holland & Knight, LLP


2016 NY Slip Op 06670


Decided on October 11, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 11, 2016

Mazzarelli, J.P., Sweeny, Acosta, Moskowitz, Gesmer, JJ.


159345/14 1875N 1874

[*1] Charles F. Gibbs, Plaintiff-Appellant,
vHolland & Knight, LLP, Defendant-Respondent.


Blank Rome LLP, New York (Leslie D. Corwin of counsel), for appellant.
Orrick, Herrington & Sutcliffe LLP, New York (John D. Giansello and Michael Delikat of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 30, 2015, which granted defendant's motion to compel arbitration and stay this action, and order, same court and Justice, entered October 22, 2015, which denied plaintiff's motion for renewal, unanimously affirmed, with costs.
The motion court correctly found that, although plaintiff had not signed the partnership agreement containing the arbitration provision, he had assumed the duty to arbitrate by annually agreeing to be bound by the partnership agreement and by repeatedly invoking the dispute resolution provision in the partnership agreement (see Thomson-CSF, S.A. v American Arbitration Assn., 64 F3d 773, 777 [2d Cir 1995]).
The court also correctly found that the dispute was governed by the arbitration provision.
Renewal was properly denied, as no waiver of the right to arbitrate was effected by defendant's application for a preliminary injunction in aid of arbitration and the accompanying assertion of counterclaims, with no further litigation activity (see Cusimano v Schnurr, 26 NY3d 391, 400 [2015]; LaRosa v Arbusman, 74 AD3d 601, 604 [1st Dept 2010]). Notably, defendant demonstrated a clear intent to continue the arbitration process by seeking mediation of the counterclaims under the dispute resolution provision of the partnership agreement.
We have considered plaintiff's other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 11, 2016
CLERK


