The Law Offices of Neal Brickman, P.C., New York (Neal Brickman and David E. Bamberger of counsel), for appellant. Cadwalader, Wickersham and Taft LLP, New York (Hal S. Shaftel of counsel), for respondent.

Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered September 17, 2013, dismissing the complaint and awarding defendant costs in the amount of $425.00 pursuant to an order, same court and Justice, entered August 5, 2013, which denied plaintiff's motion to compel arbitration and granted defendant's motion to dismiss the complaint in its entirety, unanimously affirmed, without costs.

The language in the employment agreement between the parties provides that New York law governs the agreement and its enforcement. Thus, as the motion court determined, the question of waiver of arbitration is properly decided by the court, not an arbitrator ( see Matter of Diamond Waterproofing Sys., Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247, 253, 793 N.Y.S.2d 831, 826 N.E.2d 802 [2005] ). As the motion court found, plaintiff's commencement of this action and his conduct in actively litigating it by defending against defendant's motion constitutes a waiver of his arbitration rights with respect to all of his claims ( see Tengtu Intl. Corp. v. Pak Kwan Cheung, 24 A.D.3d 170, 172, 805 N.Y.S.2d 71 [1st Dept.2005];Ciao Europa v. Silver Autumn Hotel (N.Y.) Corp., 290 A.D.2d 216, 735 N.Y.S.2d 526 [1st Dept.2002] ).

The motion court properly dismissed plaintiff's complaint in its entirety. The terms of plaintiff's employment agreement bar his claim for breach of a side deal, as well as his ancillary claims, and plaintiff's conclusory allegations are insufficient to state a claim for breach of the employment agreement. TOM, J.P., FRIEDMAN, RENWICK, GISCHE, CLARK, JJ., concur.