FIGUEROA v. (and two third-party actions). (1997)

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

Maria FIGUEROA, Respondent, v. FLATBUSH WOMEN'S SERVICES, INC., et al., Defendants, Alonzo Sherman, Appellant (and two third-party actions).

Decided: November 17, 1997

Before SULLIVAN, J.P., and FRIEDMANN, FLORIO and McGINITY, JJ.

Leahey & Johnson, P.C., New York City (Peter James Johnson, Peter J. Johnson, Jr., and James P. Tenney, of counsel), for appellant. Sylvain R. Jakabovics, New York City, for respondent.

In an action to recover damages for personal injuries based upon medical malpractice, the defendant Alonzo Sherman appeals from an order of the Supreme Court, Kings County (Levine, J.), dated September 11, 1996, which denied his motion pursuant to CPLR 7503 to stay the action and compel arbitration.

ORDERED that the order is affirmed, with costs.

Even if the arbitration clause were enforceable, the appellant waived his right to arbitrate by actively participating in this litigation prior to making his belated demand for arbitration (see, Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 486 N.Y.S.2d 159, 475 N.E.2d 772; Friedman v. 125 Div. Realty, 195 A.D.2d 497, 498, 600 N.Y.S.2d 264).

The appellant's remaining contention, raised for the first time on appeal, is not properly before this court, and, in any event, without merit.

MEMORANDUM BY THE COURT.

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