On October 24, 2024, the First Department issued a decision in Matter of Employers Ins. Co. of Wausau v. Dominion Ins. Receivable LLC, 2024 NY Slip Op. 05278, holding that a party waives the right to challenge an agreement to arbitrate by participating in the arbitration, explaining:
The court properly concluded that petitioner participated in the subject arbitration and is therefore precluded from seeking a stay pursuant to CPLR 7503(b). We note that in addition to selecting an arbitrator, petitioner also engaged in other conduct manifesting a preference inconsistent with its subsequent effort to stay arbitration, including, among other things, negotiating an agreement governing some of the arbitration procedures and representing to respondent that the arbitrators could proceed to selecting an umpire if the parties’ attempts at resolution were unsuccessful. The merits of petitioner’s arguments, including the timeliness of respondent’s claim and petitioner’s contention that respondent lacks standing since no claims against petitioner were assigned to it, are matters which may be addressed in the arbitration proceeding.
(Internal citations omitted).