Ryan v. Kellogg Partners Institutional Services
871 N.Y.S.2d 108
N.Y. App. Div.
2009
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DANIEL RYAN, Respondent, v KELLOGG PARTNERS INSTITUTIONAL SERVICES, Appellant.

Appellate Division of the Supreme Court of New York, First Department

January 15, 2009

871 NYS2d 108

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

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, 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 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 ; see [NASD arbitration subject to Federal Arbitration Act]). 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 (). Concur—Andrias, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ. [See .]