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Ryan v. Kellogg Partners Institutional Services

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 13, 2009

DANIEL RYAN, PLAINTIFF-RESPONDENT,
v.
KELLOGG PARTNERS INSTITUTIONAL SERVICES, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 26, 2008, which, in an action arising out of a securities industry employment relationship, denied defendant former employer's motion to compel arbitration before the Financial Industry Regulatory Authority (FINRA, f/k/a NAS), unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, Moskowitz, Renwick, Freedman, JJ.

601909/05

Defendant waived any right to arbitration by failing to raise it as a defense in its answer, asserting counterclaims, making a dispositive motion, and otherwise actively participating in this litigation for almost three years through the completion of extensive disclosure proceedings and the filing of a note of issue, all to the prejudice of plaintiff (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 371-372 [2005]; see Matter of Advest, Inc. v Wachtel, 253 AD2d 659 [1998] [NASD arbitration subject to FAA]). It does not avail defendant that plaintiff did not timely respond to defendant's untimely arbitration demand. Once waived, the right to arbitration cannot be regained (Tengtu Intl. Corp. v Pak Kwan Cheung, 24 AD3d 170, 172 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090113

© 1992-2009 VersusLaw Inc.



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