Practice point: Defendant’s motion to compel arbitration will be denied when defendant failed to raise it as an affirmative defense, asserted counterclaims, made a dispositive motion and otherwise actively participated in litigation, including extensive disclosure and the filing of a note of issue.
Practitioners should note that, on these facts, it does not avail defendant that plaintiff did not timely respond to defendant's untimely arbitration demand.
Case: Ryan v. Kellogg Partners Institutional Servs., NY Slip Op 00113 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Civil contempt.
