the actual work to be performed by Vespe. We do not believe that the terms and conditions under which Vespe agreed to perform the work are subsumed under the "Subcontract Documents" heading. For that reason, Clause 8 has no particular relevance to the question of the incorporation of the General Conditions of the main contract. This conclusion is based on several factors. First, the Schedule "A" listing, which supposedly contains all the Subcontract Documents, conforms to this interpretation, as does the context in which the term is used throughout the subcontract agreement. Moreover, in the "Summary of the Work" section of the general contract, under the heading "Work Under This Contract" appears the following statement: "The Work involved is established by the 'Sub-contract Documents'." General Contract, p. 1AO-1 (attached as Exhibit A to Defendant's motion for stay).
We do not lightly dismiss the fact that the subcontract, which is a form agreement prepared by Anvan, fails to specifically incorporate any outside material other than the Subcontract Documents. However, the Court does not believe that this fact alone is enough to dispel the inference raised by Clause 4 of the subcontract that, since Vespe was required to perform, pay for and turn over the concrete work to Anvan "all in accordance with the General Conditions," the General Conditions were intended by the parties to be a part of their agreement. Accordingly, we find that the terms and conditions contained in the main contract are binding on Vespe and Anvan as an incorporated part of the subcontract.
Vespe contends that, even if it is bound by the General Conditions of the main contract, there is still not an agreement requiring the arbitration of this dispute. While we concur that the General Conditions contain no express provision requiring the arbitration of disputes between a contractor and a subcontractor, we nevertheless believe that the contractual language imposes such a duty.
Article 5 of the General Conditions relates to subcontractors. Section 5.3.1 states that all work performed for a contractor by a subcontractor shall be pursuant to an appropriate agreement between them which contains, among other things, a provision requiring "that all claims for . . . damages . . . or otherwise with respect to subcontracted portions of the Work shall be submitted to the Contractor . . . in sufficient time so that the Contractor may comply in the manner provided in the Contract Documents for like claims by the Contractor upon the Owner." Contained in the "Miscellaneous Provisions" of the General Conditions is Section 7.10.1, which clearly states: "All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof . . . shall be decided by arbitration. . . ."
This Court interprets the above-quoted provisions as indicating the intent of the parties here that they be required to settle their disputes in the same manner as the owner and the contractor -- namely, through arbitration (compare Clause 8(b) of the subcontract agreement, pertaining to the Subcontract Documents, quoted in note 4 supra). Our conclusion is buttressed by Vespe's own attempt to submit this dispute to arbitration during the pendency of the original suit filed by Anvan. Furthermore, Vespe obtains no comfort from the fact that it did not specifically sign the main contract or the General Conditions. An agreement in writing sufficient for enforcement as an agreement to arbitrate disputes does not have to be signed or subscribed by the parties. It is enough that the General Conditions were incorporated into the subcontract agreement which was signed by Vespe. There is a valid agreement to arbitrate between Vespe and Anvan. Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F. Supp. at 243.
The only remaining issue concerning the propriety of granting the requested stay is whether there has been a waiver by Anvan of the right to arbitration. We hold that there has not been a waiver of arbitration in this case. Waiver of the right to arbitration is not to be lightly inferred. Carcich v. Rederi Aì Nordie, 389 F.2d 692, 696 (2d Cir. 1968). Unless one's conduct has gained him an undue advantage or resulted in prejudice to another, he should not be held to have relinquished the right. Liggett & Myers, Inc. v. Bloomfield, 380 F. Supp. 1044, 1047 (S.D.N.Y. 1974). The mere filing of a complaint or answer, without resultant prejudice to the objecting party, will not justify a finding of waiver. Carolina Throwing Co. v. S & E Novelty Corp., 442 F.2d 329, 331 (4th Cir. 1971).
The facts in the instant case are clearly distinguishable from those in Liggett & Myers, Inc. v. Bloomfield, supra, where Judge Weinfeld found a waiver of arbitration by the movants. In that case, ten months went by between the commencement of the suit and the invocation of arbitration. During that period, despite a change of counsel, the movants not only answered and counterclaimed, but the litigation was proceeding apace. Discovery by all litigants had been well advanced, with an accumulation of thousands of pages of testimony and discovery of hundreds of documents, and it was anticipated that the case would proceed to trial in the immediate future. Judge Weinfeld found that the movants had obtained many benefits from the pretrial discovery process which would not have been available to them if they had seasonably demanded arbitration, and he held that this was sufficient to constitute a waiver.
In contrast, demand for arbitration was made in the present action only six weeks following the filing of the complaint. Moreover, Anvan replaced its original counsel during that period, and the arbitration request followed just ten days after new counsel's entry of appearance. Anvan has neither answered the complaint, nor commenced any discovery, nor done anything else inconsistent with its claimed right to arbitration. See Bigge Crane, supra, 371 F. Supp. at 244; Harman Electrical Construction Co. v. Consolidated Engineering Co., 347 F. Supp. 392, 399 (D.Del. 1972). In fact, the only discovery activity which has occurred to date has been initiated by Vespe and has worked to its clear advantage. Anvan cannot be said to have waived its right to compel arbitration.
This Court will, accordingly, grant a stay of proceedings in this suit pending arbitration of the underlying dispute. However, the Court will retain jurisdiction over the case and will permit pretrial discovery under the Federal Rules of Civil Procedure to continue until such time as the parties have selected and agreed upon an arbitrator, or panel of arbitrators, and have so notified the Court. See Bigge Crane, supra. While the Court, in making available this additional opportunity for discovery, does not wish to bestow upon plaintiff more rights in the arbitral process than the contract provided for, such action seems appropriate in this case in order to insure that any delay which may occur will not work undue hardship. See Nederlandse Erts-Tankersmaatschappij v. Isbrandtsen Company, 339 F.2d 440, 442 (2d Cir. 1964). As progress continues at the construction site, evidence of Vespe's performance of the concrete work is "disappearing" behind the hotel's interior and exterior wall coverings. For all practical purposes, Vespe's work product will be inaccessible for future inspections. In light of the peculiar circumstances here, we think it proper to allow discovery to proceed at this time. The results of this discovery should be of great assistance during the arbitration proceeding.
While we believe that discovery should not be cut off at this point, the Court expects arbitration to begin within a reasonable time. Continued discovery is predicated on the assumption that neither party will hamper the progress of the arbitration process. See Nederlandse, supra at 442; Bigge Crane, supra, 371 F. Supp. at 246. In the event that either party is responsible for unjustified delay, the Court will entertain an appropriate motion to modify or vacate the Order filed today with this Memorandum.