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MATTER OF EMPIRE CORE GROUP, LLC v. PERENNIAL PAINTING & CLEANING LLC

Docket No. 653643/20. Appeal No. 14208. Case No. 2020-04476.

197 A.D.3d 1032 (2021)

151 N.Y.S.3d 864

2021 NY Slip Op 05077

In the Matter of Empire Core Group, LLC, Respondent, v. Perennial Painting and Cleaning LLC, Doing Business as Perennial Construction Solutions, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided September 28, 2021.

Attorney(s) appearing for the Case

Newman Ferrara LLP, New York ( Gregory M. Dexter of counsel), for appellant.

Wilson & Chan LLP, New York ( Jeffrey L. Wilson of counsel), for respondent.

Concur—Webber, J.P., Mazzarelli, González, Scarpulla, Pitt, JJ.

Respondent's assertion of a counterclaim under the Prompt Payment Act (PPA) (General Business Law § 756 et seq.), in addition to its other, nonarbitrable, counterclaims, was "a positive and unequivocal election to ignore its contractual right to arbitration and to seek to resolve all of its claims in the court suit" (Matter of United Paper Mach. Corp. [Di Carlo], 19 A.D.2d 143, 145 [4th Dept 1963], affd

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