Singer v. Seavey , 923 N.Y.S.2d 29 ( 2011 )

Appeal from order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 16, 2009, which, to the extent appealed from, denied the motion by defendants Robert Seavey and BNA Realty Company to dismiss the cause of action for breach of fiduciary duty as against them, unanimously dismissed, without costs, as academic. Order, same court and Justice, entered January 13, 2010, which denied defendants’ motion to compel arbitration, unanimously reversed, on the law, without costs, the motion granted, and all proceedings stayed pending arbitration, except plaintiffs’ fourth cause of action seeking a declaration as to the extent of defendant John Edmonds’ interest in the partnership.

Defendants did not waive their right to arbitrate by moving to dismiss the complaint and appealing from the partial denial of the motion (see Flynn v Labor Ready, 6 AD3d 492 [2004]). Nor, since defendants made their demand for arbitration before serving their answer, did they waive the right by asserting the cross claim (see City Trade & Indus., Ltd. v New Cent. Jute Mills Co., 25 NY2d 49, 55 [1969]).

In light of this determination, we dismiss the appeal from the first order as academic. Concur—Mazzarelli, J.P., Friedman, McGuire, Renwick and Richter, JJ.

The decision and order of this Court entered herein on December 9, 2010 (79 AD3d 511 [2009]) is hereby recalled and vacated (see 2011 NY Slip Op 69680[U] [2011] [decided simultaneously herewith]). [Prior Case History: 2009 NY Slip Op 31302(U).]