Gemini Real Estate Advisors v. Byron Realty I Corp.

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.

Eetitioners’ 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.E, Friedman, Catterson, Renwick and DeGrasse, JJ.