Dra-Po Construction Co. v. L. Riso & Sons Co. , 149 A.D.2d 649 ( 1989 )

— In an action to foreclose on a mechanic’s lien, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated August 16, 1988, which denied its motion to stay arbitration.

Ordered that the order is affirmed, with costs to the respondent L. Riso & Sons Co., Inc.

The plaintiff’s motion to stay arbitration, which was made approximately five months after the plaintiff itself had demanded arbitration, and after the plaintiff had participated in the arbitration, was properly denied. Insofar as relevant here, a stay of arbitration is only available to a party "who has not participated in the arbitration and who has not made * * * an application to compel arbitration” (CPLR 7503 [b]). If the arbitrator decides an issue which the plaintiff believes to have been beyond the arbitrator’s jurisdiction to decide, the plaintiff’s proper course is to apply for vacatur of the arbitrator’s award (see, CPLR 7511 [b] [1]).

In light of the foregoing, we need not reach the remaining issue raised by the plaintiff. Mangano, J. P., Brown, Rubin and Kooper, JJ., concur.