C. Waiver

• Jurisdiction: New York

C. Waiver

As with any contractual right, the right to insist upon arbitration may be waived by one or both of the parties.⁵³ While in general, a party to an arbitration agreement waives its right to arbitrate by commencing a lawsuit on the subject claims, the defendant to the suit will not waive its right to demand arbitration unless it evidences a clear intent to do so.⁵⁴

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Notes:

^[53] Alexander, McKinney's Practice Commentary, CPLR 7501 (1998); see, e.g., State-Unified Court Sys. v. Dist. Council 37, 121 A.D.3d 497, 994 N.Y.S.2d 591 (1st Dep't 2014) (three respondents waived their right to arbitration by commencing federal action asserting virtually the same claims as those asserted in arbitration proceeding); Waldman v. Mosdos Bobov, Inc., 72 A.D.3d 983, 983–84, 898 N.Y.S.2d 523 (2d Dep't 2010) (plaintiffs waived whatever right they had to arbitration by commencing an action at law involving the arbitrable issues, thus the arbitrators should not have conducted the arbitration and any award made exceeded their authority); LZG Realty, LLC v. H.D.W. 2005 Forest, LLC, 71 A.D.3d 642, 643, 896 N.Y.S.2d 389 (2d Dep't 2010) (defendant waived right to compel arbitration after participating in extensive discovery and only first raising issue of arbitration one and a half years after service of answer); Reynolds & Reynolds Co. v. Goldsmith Motor Corp. , 251 A.D.2d 312, 672 N.Y.S.2d 804 (2d Dep't 1998) (the factors to consider when determining what constitutes a waiver are "the extent of the party's participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced").

^[54] See Stark v. Molod Spitz DeSantis & Stark, P.C., 9 N.Y.3d 59, 845 N.Y.S.2d 217 (2007) (parties did not waive their right to arbitration by participating in court proceedings for emergency relief to allow one of the parties to continue to represent her clients in pending lawsuits); Sherrill v. Grayco Builders, Inc., 64 N.Y.2d 261, 486 N.Y.S.2d 159 (1985); Willer v. Kleinman , 114 A.D.3d 850, 851, 980 N.Y.S.2d 567 (2d Dep't 2014) (defendants waived arbitration by asserting counterclaims and serving demands for discovery); Masson v. Wiggins & Mason, LLP , 110 A.D.3d 1402, 1406, 974 N.Y.S.2d 619 (3d Dep't 2013) (defendant waived arbitration by failing to move to stay the action and compel arbitration and by receiving the benefit of extensive discovery that would not have been...