| Ryan v Kellogg Partners Inst. Servs. |
| 2009 NY Slip Op 00113 [58 AD3d 481] |
| January 13, 2009 |
| Appellate Division, First Department |
| Daniel Ryan, Respondent, v Kellogg Partners InstitutionalServices, Appellant. |
—[*1] Thomas S. Rosenthal, New York, for respondent.
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, denieddefendant former employer's motion to compel arbitration before the Financial IndustryRegulatory Authority (FINRA, formerly known as NASD), unanimously affirmed, with costs.
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 thislitigation for almost three years through the completion of extensive disclosure proceedings andthe 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 arbitrationsubject to Federal Arbitration Act]). It does not avail defendant that plaintiff did not timelyrespond to defendant's untimely arbitration demand. Once waived, the right to arbitration cannotbe regained (Tengtu Intl. Corp. v PakKwan Cheung, 24 AD3d 170, 172 [2005]). Concur—Andrias, J.P., Nardelli,Moskowitz, Renwick and Freedman, JJ. [See 2008 NY Slip Op 30855(U).]