Tradesource, Inc. v. Ancor, Inc. , 721 N.Y.S.2d 810 ( 2001 )

—In an action, inter alia, to foreclose a mechanic’s lien, the defendants appeal from an order of the Supreme Court, Nassau County (Carter, J.), dated July 26, 2000, which granted the plaintiff’s cross motion to compel arbitration and denied their motion to change the venue of the action from Nassau County to Onondaga County.

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contentions, the plaintiffs commencement of this action, inter alia, to foreclose a mechanic’s lien in response to the defendants’ demand pursuant to Lien Law § 59 did not constitute a waiver of its contractual right to resolve the dispute in arbitration (see, Matter of D.M.C. Constr. Corp., v Nash Steel Corp., 50 AD2d 560; Matter of Riggi [Wade Lupe Constr. Co.], 176 AD2d 1177; A. Burgart, Inc. v Foster-Lipkins Corp., 63 Misc 2d 930, affd 38 AD2d 779, affd 30 NY2d 901). Therefore, the Supreme Court properly granted the plaintiffs cross motion to compel arbitration.

In light of the foregoing, the defendants’ contentions concerning their motion to change the venue of the action are academic. Santucci, J. P., S. Miller, McGinity and Smith, JJ., concur.