In deciding whether arbitration has been waived, the court considers the extent of the litigation, the length of time between the start of litigation and the request to arbitrate, and whether there is prejudice to the other party. Here, there was service of amended pleadings, but no discovery or motion practice. The length of time between the start of litigation and the demand for arbitration was 26 months, but that length of time, without more, is not enough to effectuate a waiver, as the critical element is prejudice. The Appellate Division rejected the conclusory argument that plaintiff will not be able to properly defend the arbitration due to the passage of time. The statute of limitations defense is still available to plaintiff and can be argued before the arbitrator.
Matter of NBC Universal Media, LLC v. Strauser, NY Slip Op 00091 (1st Dep' January 7, 2021)
