Johnson v. Brooklake Associates ( 2000 )

—Order, Supreme Court, New York County (Louis York, J.), entered on or about October 7, 1999, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment, granted that branch of defendant’s cross motion for summary judgment seeking dismissal of plaintiffs Executive Law § 296 (16) claim, and denied that branch of the cross motion seeking dismissal of plaintiffs breach of contract claim, unanimously affirmed, without costs.

The motion court properly dismissed plaintiffs Executive Law § 296 (16) claim. Plaintiffs breach of contract claim was, however, properly sustained as against defendant’s contention that, pursuant to the parties’ contract, it was one properly to be pursued in arbitration. Defendant waived any right to arbitrate the claim by affirmatively participating in this lawsuit (see, De Sapio v Kohlmeyer, 35 NY2d 402, 405; Poledar Realty v Christ, 171 AD2d 603, 605). Concur — Mazzarelli, J. P., Ellerin, Lerner, Rubin and Andrias, JJ.