Freidberg v. Freidberg , 23 Misc. 2d 196 ( 1960 )

Owen McGivern, J.

This is a motion to vacate a demand for arbitration concerning the education of the son of the parties and for a direction that defendant pay the tuition thereof. Defendant claims that plaintiff has waived her right to arbitrate by initiating a Domestic Court proceeding and that the issue stated in the demand is not one subject to arbitration. The papers submitted indicate no clear deliberate inclination on the part of the plaintiff to waive the arbitration clause in the judgment previously entered herein. It appears that on February 24, 1960, plaintiff applied to the Children’s Court Division of the Domestic Relations Court for relief, claiming that defendant refused to pay for his son’s tuition at the Collegiate School in this city and also for his psychiatric care. The matter of schooling appears to be no longer an issue before the Domestic Relations Court, as the child has been since placed in a public school. (La Hay, Inc. v. Pathé Exch., 237 App. Div. 468, affd. 262 N. Y. 483.) This court holds that the issue stated in the demand is arbitrable. (Matter of Luttinger, 294 N. Y. 855; Matter of Robinson, 296 N. Y. 778; Zuckerman v. Zuckerman, 96 N. Y. S. 2d 190.) The case of Matter of Michelman (5 Misc 2d 570) relied upon by defendant is distinguishable, as the right of custody and visitation were involved in the cited precedent, and not the issue of the selection of a school and the payment of tuition thereof. Accordingly, the motion to vacate the demand is denied. Let the matter proceed to arbitration. Settle order.