Supreme Court, Queens County, New York. Application of DEVORA

       JEWELRY, INC., d/b/a Nissan Jewelers and Nassir Manzorolhagh,

    Petitioner, For an Order Pursuant to Article 75 of the CPLR Staying

        Arbitration of a Certain Controversy, v. DAVIS ALARM, INC.,

                  Respondent. No. 5688/03. June 12, 2003.





JAMES P. DOLLARD, J.

**1 The underlying action in this matter was commenced in the Civil

Court of the City of New York, County of Queens under Index No.

62675/00 on or about August 23, 2000 for breach of a standard alarm

lease agreements dated April 4, 2000 and August 16, l996.

There was some underlying motion practice in Civil Court and on

October 24, 2002 the plaintiff Davis Alarm Inc. in that Civil Court

action moved for an order striking defendant's jury demand and

directing that the case be placed on the calendar for a non-jury

trial. That motion resulted in an order by Hon. Anthony V. Gazzara,

JCC which stated "the motion is granted to the extent that

defendant's jury demand is stricken, and this case any any

counterclaims are dismissed from this court and ordered to be

submitted to arbitration before the National Arbitration Association,

pursuant to the contract agreement." Devora and Nissan filed a Notice

of Appeal on January 8, 2003. Pursuant to the aforesaid order, Davis

Alarms, Inc. commenced an arbitration proceeding against Devora and

Nissan by serving them with a Demand for Arbitration on February 18,

2003.

Devora and Nissan now petition this Court for an Order staying the

arbitration proceeding and all proceedings therein pursuant to CPLR §

7503(b). Their argument is essentially that Davis waived its right to

arbitration "by embarking on an intense and aggressive motion

practice and discovery and inspection" and that there was no ironclad

binding arbitration. CPLR § 7503(b) addresses applications to stay

arbitration. It reads in relevant part that when "a party who has not

participated in the arbitration and who has not made or been served

with an application to compel arbitration, may apply to stay

arbitration on the ground that a valid argument was not made ..."

However, the Civil Court has ordered that the matters at issue

between the parties be submitted to arbitration (See New York City

Civil Court Act, Section 206(a)). That order is res adjudicata.

N.Y.Sup.,2003.

Devora Jewelry, Inc. v. Davis Alarm, Inc.

7 Misc.3d 1005(A), 2003 WL 24032986 (N.Y.Sup.), 2003 N.Y. Slip Op.

51753(U) Unpublished Disposition

END OF DOCUMENT