By participating in the lawsuit for two years before filing its motion to compel arbitration, defendant waived its right to assert that the action is barred by the arbitration agreement. Defendant failed to plead the arbitration agreement as an affirmative defense, and did not produce it in response to plaintiff's discovery request. Plaintiff demonstrated prejudice, as she had already expended considerable time and resources in litigating her claims in court.
Wallace v. Tri-Med Home Care Servs., Inc., NY Slip Op 00821 (1st Dep't February 9, 2021)
