Justice Charles Ramos
Cusimano plaintiffs moved to dismiss or stay an action pending an arbitration that they commenced against the defendants, who cross-moved to dismiss the action with prejudice based on the court's prior rulings that claims in the original complaint were time-barred and/or insufficiently pleaded. Defendants also moved for a permanent stay of the bulk of the arbitration claims as time-barred. The plaintiffs contended that because arbitration provisions call for arbitration of disputes, all threshold issues, including the statute of limitations, are for the arbitrator to decide. The court found that plaintiffs resorted to arbitration only after receiving an unfavorable ruling on the timeliness and legal sufficiency of their claims against defendant. The court saw this as a flagrant example of forum shopping and held that any right that the plaintiff may have had to insist on arbitration has been waived by her resorting to this litigation.
