JSBarkats PLLC, Respondent, v. Response Scientific Inc. et al., Appellants

JSBarkats PLLC, Respondent, v Response Scientific Inc. et al., Appellants. [50 NYS3d 873] [MAJORITY] Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about May 6, 2016, which denied defendants’ motion to compel arbitration, unanimously affirmed, without costs. The motion court properly decided the issue of waiver (see Cusimano v Schnurr, 26 NY3d 391, 401 n 3 [2015]) and properly determined that defendants had waived arbitration. Defendants’ participation in the lawsuit, in both state and federal court, for approximately 11 months before moving to compel arbitration manifested an affirmative acceptance of the judicial forum and caused plaintiff unnecessary delay and expense (see id. at 400-401; see also De Sapio v Kohlmeyer, 35 NY2d 402, 405 [1974]; Thyssen, Inc. v Calypso Shipping Corp., S.A., 310 F3d 102, 105 [2d Cir 2002], cert denied 538 US 922 [2003]). We have considered defendants’ remaining arguments and find them unavailing. Concur — Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels and Webber, JJ.