Ryan v. Kellogg Partners Institutional Services

Order, Supreme Court, New York County (Barbara R. Kap-nick, 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 Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 371-372 [2005]; see Matter of Advest, Inc. v Wachtel, 253 AD2d 659 [1998] [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 482 regained (Tengtu Intl. Corp. v Pak Kwan Cheung, 24 AD3d 170, 172 [2005]). Concur—Andrias, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ. [See 2008 NY Slip Op 30855(U).]