JSBarkats PLLC v. Response Scientific Inc. , 149 A.D.3d 652 ( 2017 )

JSBarkats PLLC v Response Scientific Inc. (2017 NY Slip Op 03142)

JSBarkats PLLC v Response Scientific Inc.

2017 NY Slip Op 03142

Decided on April 25, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 25, 2017
Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels, Webber, JJ.

3845 159434/14

[*1]JSBarkats PLLC, Plaintiff-Respondent,

v

Response Scientific Inc., et al., Defendants-Appellants.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Joseph P. LaSala of counsel), for appellants.

Gene W. Rosen, Kew Gardens Hills, for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about May 6, 2016, which denied defendants' motion to compel arbitration, unanimously affirmed, without costs.

The motion court properly decided the issue of waiver (see Cusimano v Schnurr, 26 NY3d 391, 401 n 3 [2015]) and properly determined that defendants had waived arbitration. Defendants' participation in the lawsuit, in both state and federal court, for approximately 11 months before moving to compel arbitration manifested an affirmative acceptance of the judicial forum and caused plaintiff unnecessary delay and expense (see id. at 400-401; see also De Sapio v Kohlmeyer, 35 NY2d 402, 405 [1974]; Thyssen, Inc. v Calypso Shipping Corp., S.A., 310 F3d 102, 105 [2d Cir 2002], cert denied 538 US 922 [2003]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 25, 2017

CLERK