Failure To Seek Stay of Arbitration Precludes Employer From Arguing That The Matter Is Not Arbitrable

Matter of DeMartino v. N.Y.S. Dept. of Transportation, ____A.D. 3d___(1st Dept. Nov. 10, 2009), illustrates a basic point of New York arbitration law. A party has a duty to seek a stay of arbitration if he wants to claim that a condition precedent to arbitration was not met. As the court explained:

By proceeding to arbitration without moving for a stay, respondents waived their current claims that petitioner failed to comply with the conditions precedent to arbitration, i.e., had no right to arbitrate (see Matter of Commerce & Indus. Co. v Nester, 90 NY2d 255, 261-262 [1997]), and that the arbitrator lacked jurisdiction to decide the dispute (see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79, 83 [2003])

Mitchell H. Rubinstein