D-Lion Co. v. United Excavating & Paving, Inc.

The defendant moves to dismiss “on the basis that the parties entered into an agreement in writing providing for arbitration”. The defendant in support asserts *57that the action is one for an alleged breach of contract which includes an arbitration clause. A copy of the alleged contract is annexed. The affidavit then states only: “The defendant has not waived its right to arbitration or taken any steps inconsistent therewith. The action, therefore, should be dismissed, and if the plaintiff so wishes, it can proceed with arbitration.”

The position taken by the defendant in its memorandum is that…