RUTTURA & SONS CONSTRUCTION CO., INC. v. J. PETROCELLI CONSTRUCTION, INC.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly determined that the defendant J. Petrocelli Construction, Inc. (hereinafter Petrocelli), did not waive its right to arbitrate by participating in this litigation. Because Petrocelli raised the requirement of arbitration as an affirmative defense in its answer, and because there are arbitrable and nonarbitrable issues involved, it did not waive its right to arbitration (see, Sherrill v Grayco Bldrs., 64 N.Y.2d 261; De Sapio v Kohlmeyer, 35 N.Y.2d 402; Bucci v McDermott, 156 A.D.2d 328).

The Supreme Court also properly granted the branch of the cross motion which was for summary judgment dismissing the second cause of action, which was to recover on a surety bond. The evidence indicates that the plaintiff did not commence this cause of action within one year after work was completed, as required by the subcontract. The plaintiff has failed to show that facts essential to justify opposition may exist upon further discovery. A determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence (see, Auerbach v Bennett, 47 N.Y.2d 619; see also, Carrington v City of New York, 201 A.D.2d 525; Kennerly v Campbell Chain Co., 133 A.D.2d 669).