December 17, 2015

Although a contract may provide for the resolution of disputes by arbitration, litigation-related conduct by a party may constitute a waiver of its right to demand arbitration

Although a contract may provide for the resolution of disputes by arbitration, litigation-related conduct by a party may constitute a waiver of its right to demand arbitration
Cusimano v Schnurr, 2015 NY Slip Op 09232, Court of Appeals

The issues presented by this appeal are whether the Federal Arbitration Act [FAA] is applicable to disputes arising under the several agreements at issue in this action and, if so, whether the plaintiffs, Rita and Dominic Cusimano waived their right to arbitrate the dispute by pursuit of this litigation in court. The Court of Appeals held that although the FAA does apply in this instance, the Cusimanos, by their actions in initiating litigation concerning the matter in Supreme Court, waived their right to arbitrate their complaint.

Citing 9 USC §2, the Court of Appeals said that the FAA provides that "[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."

In this instance the court found that the ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that was, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce — and, concluded the Court of Appeals, here it does.

In Stark v Molod Spitz DiSantis & Stark, PC, 9 NY3d 59, it was held that “like contract rights generally, a right to arbitration may be modified, waived or abandoned.”  Thus, said the court, a litigant may not compel arbitration when its use of the courts is “clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration.”

Although not every attempt to litigate an issue in court “effects a waiver of the right to arbitrate," in this instance the Court of Appeals was satisfied that the totality of the Cusimanos' conduct here establishes its waiver of its right to arbitrate the matter, explaining that although federal policy expresses a preference in favor of arbitration, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established.

In the words of the Court of Appeals, “[a]fter vigorously pursuing their litigation strategy for approximately one year, the Cusimanos moved to compel arbitration. Even more telling, said the court, the Cusimanos' desire for arbitration only arose after Supreme Court made plain its view that the Cusimanos' claims were vexatious and largely time-barred. Indeed, in the court of its litigation before the Supreme Court, the Cusimanos had expressly represented to the court that they did not want to go to arbitration.”

Deeming the Cusimanos' behavior in this regard suggests “forum-shopping,” the Court of Appeals concluded that under these circumstances, prejudice against Schnurr has clearly been established. Finding that the Cusimanos actions had constituted a waiver their right to arbitration, the Court of Appeals said that the issue of timeliness should be determined by the court. Further, the court noted that although in previous cases it had, in dicta,* indicated that waiver is generally one of the issues that should be decided by the arbitrator, courts have held that whether a party has waived arbitration by litigation-related conduct is an issue for the courts,

* Dicta – a statement or observation in a judicial ruling or interpretation that was not part of the legal basis for judgment.

The decision has been posted on the Internet at: