Opinion
February 25, 1975
Appeal from a judgment, Supreme Court, New York County, entered on April 16, 1973, granting the relief sought in the petition, without prejudice to respondent-appellant's right to serve a new demand for arbitration, unanimously dismissed, without costs and without disbursements, as prayed for on the earlier motion made by petitioner. After judgment appealed from was entered on April 16, 1973, the appellant, who already had started an action against the engineers, on May 5, 1973 joined the respondent in that action and pressed the same claims against the respondent as those involved in its demand for arbitration. The respondent filed an answer and served cross claims and a third-party complaint. The parties thereafter enagaged in disclosure and motion practice. Having continued with the prosecution of the action against respondent, at the same time taking no action with reference to the prosecution of the arbitration appeal, the appellant is deemed to have waived its rights to arbitration. ( Matter of Zimmerman [ Cohen], 236 N.Y. 15; Oklahoma Pub. Co. v. Parsons Whittemore, 255 App. Div. 589, 591; Matter of Ladin [ D C Textile Corp.], 20 A.D.2d 8, affd. 14 N.Y.2d 781. )
Concur — Markewich, J.P., Tilzer, Capozzoli and Nunez, JJ.