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I know nothing about NY law. However, there are some arbitration clauses that state arbitration can be invoked anytime prior to final judgement. -
There are arb clauses that specifically state that arbitration can be invoked anytime prior to final judgement. However, I was under the impression OP hadn't engaged in discovery and wasn't planning on asking for any. So wouldn't she/he be able to at least try for arbitration? And if it didn't work out, ask for a discovery and a continuance to conduct it?
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I'm thinking this is where/why the judge ruled based off of them filing in state court: Under Indiana law, a party may waive its right to arbitrate a dispute that is otherwise arbitrable under a valid arbitration agreement. Even if a party does not waive arbitration in express terms, the court may find the party impliedly waived its right to arbitrate because of the party’s actions. (See Safety Nat. Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1004 (Ind. Ct. App. 2005).) To find waiver, the court must find the party acted inconsistently with its right to arbitrate by engaging in court litigation (see MPACT Const. Grp., 802 N.E.2d at 910). The factors the court considers include: The timing of the arbitration request. The filing of any dispositive motions. Whether the party seeking to arbitrate is unfairly manipulating the judicial system by attempting to obtain a second bite at the apple due to an unfavorable ruling in another forum (See Finlay Props., Inc. v. Hoosier Contracting, LLC, 802 N.E.2d 453, 455 (Ind. Ct. App. 2003).) ********************************** This case dealt with whether there was an agreement to arbitrate: https://www.courtlistener.com/opinion/852946/mpact-const-group-llc-v-superior-concrete-constructors-inc/ @Brotherskeeper @fisthardcheese @BV80 -
Update- I filed my response with the court denying the plaintiffs claim. It was only a couple of questions. Now, I have prepared my letter to elect arbitration, affidavit of cardmember agreement, cardmember agreement copy, mtc arb, and jams demand forms. Anxiety is starting to set in. This is in magistrates court where you have to answer the complaint first before filing a motion. Was I supposed to mail the Atty my letter to elect arbitration first and then submit my answer on the complaint to the court (I elect private arbitration per cardmember agreement) and used this as an absolute defense. HELP! will the judge still hear my plea? -
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