IN RE: Application of Henry HACKEL (1997)

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered May 20, 1997, which denied petitioner Hackel's petition and respondent R.F. Lafferty & Co., Inc.'s cross-petition for a permanent stay of arbitration, unanimously affirmed, with costs.

We agree with the IAS court that appellants' active participation in the arbitration waived their contention that arbitrability as to those claims involving signatories to individual Option Agreements was to be decided by the courts, not the arbitrators (see, Matter of Thompson v. S.L.T. Ready-Mix, 216 A.D.2d 656, 627 N.Y.S.2d 802).   As to the remaining claimants, the language of the relevant AMEX rule renders the issue of arbitrability one to be determined by the arbitrators (see, Matter of Smith Barney v. Hause, 238 A.D.2d 104, 106, 655 N.Y.S.2d 489, 491, lv. granted 90 N.Y.2d 886, 661 N.Y.S.2d 829, 684 N.E.2d 279).   Even were we to find that the issue of whether or not the claims comprise a class action for the purposes of AMEX Rule 600(d) was one to be decided by the courts, not the arbitrators, we would agree with the IAS court that the subject arbitration does not represent a class action (compare, CPLR 901, with Fed.Rules Civil Pro., rule 23[a] ).   We have considered appellants' remaining arguments and find them to be without merit.

MEMORANDUM DECISION.