Poole v West 111th St. Rehab Assoc., 2011 NY Slip Op 02459 [82 AD3d 647]

March 29, 2011

Appellate Division, First Department

— [*1]

Sullivan Gardner PC, New York (Peter R. Sullivan of counsel), for appellants.

Claude Castro & Associates PLLC, New York (Claude Castro of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 19, 2010, denying defendants’ motion for summary judgment dismissing the complaint for failure to comply with the arbitration provision in the parties’ partnership agreement, unanimously affirmed, with costs.

Defendants waived any right to arbitration by failing to raise it as a defense in their answer, making a dispositive motion, seeking discovery and otherwise actively participating in this litigation for almost nine months before notifying plaintiff of their intention to seek arbitration ( see Flores v Lower E. Side Serv. Ctr., Inc. , 4 NY3d 363 , 371-372 [2005]). We reject defendants’ contention that any waiver of the right to arbitrate by the defendants in the original complaint may not bind the additional defendants named in the amended complaint. The newly named estates and trust, by their executors and trustee, are represented by the same persons named as defendants in the original complaint. Concur—Mazzarelli, J.P., Saxe, Renwick, DeGrasse and Richter, JJ..