Figueroa v. Flatbush Women's Services, Inc. , 664 N.Y.S.2d 118 ( 1997 )

—In an action to recover damages for personal injuries based upon medical malpractice, the defendant Alonzo Sherman appeals from an order of the Supreme Court, Kings County (Levine, J.), dated September 11, 1996, which denied his motion pursuant to CPLR 7503 to stay the action and compel arbitration.

Ordered that the order is affirmed, with costs.

Even if the arbitration clause were enforceable, the appellant waived his right to arbitrate by actively participating in this litigation prior to making his belated demand for arbitration (see, Sherrill v Grayco Bldrs., 64 NY2d 261; Friedman v 125 Div. Realty, 195 AD2d 497, 498).

The appellant’s remaining contention, raised for the first time on appeal, is not properly before this Court, and, in any event, without merit. Sullivan, J. P., Friedmann, Florio and McGinity, JJ., concur.