RYAN v. KELLOGG PARTNERS INSTITUTIONAL SERVICES (2009)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 26, 2008, which, in an action arising out of a securities industry employment relationship, denied defendant former employer's motion to compel arbitration before the Financial Industry Regulatory Authority (FINRA, f/k/a NAS), unanimously affirmed, with costs.

 Defendant waived any right to arbitration by failing to raise it as a defense in its answer, asserting counterclaims, making a dispositive motion, and otherwise actively participating in this litigation for almost three years through the completion of extensive disclosure proceedings and the filing of a note of issue, all to the prejudice of plaintiff (see Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 371-372, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005];  see Matter of Advest, Inc. v. Wachtel, 253 A.D.2d 659, 677 N.Y.S.2d 549 [1998] [NASD arbitration subject to FAA] ).   It does not avail defendant that plaintiff did not timely respond to defendant's untimely arbitration demand.   Once waived, the right to arbitration cannot be regained (Tengtu Intl. Corp. v. Pak Kwan Cheung, 24 A.D.3d 170, 172, 805 N.Y.S.2d 71 [2005] ).