HOFFMAN v. AKT IN MOTION INC (2023)

Supreme Court, Appellate Division, First Department, New York.

Ariel HOFFMAN, Plaintiff–Respondent, v. AKT IN MOTION, INC., Defendant–Appellant.

75 Decided: April 20, 2023

Oing, J.P., González, Shulman, Higgitt, JJ.

Law Office of Craig Dietsch, Brooklyn (Craig Dietsch of counsel), for appellant. Goddard Law PLLC, New York (Anthony P. Consiglio of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about September 23, 2021, which denied defendant's motion to compel arbitration and dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's contention that CPLR 7515, which bars mandatory arbitration of discrimination claims, renders the arbitration provision unenforceable is unavailing, as that provision applies prospectively (see CPLR 7515[b][i]), and postdates the arbitration agreement in this matter (see Curtis v. Marino, 201 AD3d 584, 585 [1st Dept 2022]). Nonetheless, Supreme Court properly denied defendant's motion.

Defendant's 18–month participation in the litigation, which included a request for an extension of time to answer the complaint, the filing of an answer, appearance at a preliminary conference, and agreeing to a discovery schedule, amounts to a waiver of its contractual right to arbitrate (see JSBarkats PLLC v. Response Scientific Inc., 149 AD3d 652, 652 [1st Dept 2017]).

We have considered defendant's remaining contentions and find them unavailing.

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