Jeff Isaac Rare Coins, Inc., Respondent, v. Atlantic Discount Brokerage, Inc., et al., Defendants, and Shoreham Enterprises, Inc., et al., Appellants

Jeff Isaac Rare Coins, Inc., Respondent, v Atlantic Discount Brokerage, Inc., et al., Defendants, and Shoreham Enterprises, Inc., et al., Appellants. [601 NYS2d 710] [MAJORITY] In an action, inter alia, to recover damages for breach of contract, the appeal is from (1) an order of the Supreme Court, Nassau County (McCabe, J.), dated March 29, 1990, which, inter alia, denied the appellants’ cross motion for a stay of arbitration, and (2) a judgment of the same court, entered March 15, 1991, which granted the plaintiffs motion to confirm an arbitration award in favor of the plaintiff in the principal sum of $51,000. Ordered that the appeal from the order dated March 29, 1990, is dismissed, for failure to perfect the same in accordance with the rules of this Court; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the plaintiff is awarded one bill of costs. By order of the Supreme Court, Nassau County, dated March 29, 1990, the parties were directed to proceed to arbitration. The appellants filed a notice of appeal from that order in April 1990, but that appeal was never perfected. The plaintiff in its brief on this appeal, and in its motion to confirm the arbitration award in the Supreme Court, Nassau County, argued that the appeal from the order should be deemed abandoned. We agree, and dismiss the appeal from the order for lack of prosecution. Thus, the review "of all claims which could have been litigated had the appeal been timely argued or submitted” may not be considered on the appeal from the judgment (see, Bray v Cox, 38 NY2d 350, 355; Montalvo v Nel Taxi Corp., 114 AD2d 494; Matter of Smith v McManus & Sons, 101 AD2d 890). The appellants also contend that the arbitrators lacked jurisdiction over them and that that agreement is reviewable via collateral attack upon the judgment confirming the award (see, Matter of Silverman [Benmor Coats], 61 NY2d 299). However we find that argument to be unavailing since it was waived by their failure to raise it in their application for a stay of arbitration (see, e.g., Matter of Peckerman v D & D Assocs., 165 AD2d 289, 295). We have reviewed the appellants’ remaining contentions and find them to be without merit. Balletta, J. P., Rosenblatt, Miller and Joy, JJ., concur.