Fong v. Johnson

—Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about February 3, 1994, which granted defendants’ motion to compel arbitration, unanimously affirmed, without costs. Contrary to plaintiffs contention, the contractor’s filing of a notice of lien does not waive its right to arbitration (Lien Law [458] § 35; Sommer v Quarant Contr., 40 AD2d 95). We decline to consider plaintiff’s argument, raised for the first time on appeal, that the arbitration clause was void because his agreement with the unlicensed contractor was unenforceable (cf., Matter of Klineman [NJS Inc.], 160 Misc 2d 774). Concur—Ellerin, J. P., Wallach, Asch, Nardelli and Tom, JJ.