Opinion
June 1, 1998
Appeal from the Supreme Court, Queens County (Price, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contention, the Supreme Court properly concluded that the plaintiff did not waive its right to arbitration of the defendant's counterclaims. The counterclaims are clearly encompassed by the parties' arbitration agreement, which, by its terms, is to be governed by the Federal Arbitration Act (hereinafter FAA) ( 9 U.S.C. § 1 et seq.). The FAA "creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate" (Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25, n 32). There is a strong Federal policy favoring arbitration and any doubts concerning the issue of waiver should be resolved in favor of arbitration (see, Cone Mem. Hosp. v. Mercury Constr. Corp., supra, at 24-25; Leadertex, Inc. v. Morganton Dyeing Finishing Corp., 67 F.3d 20, 25). Given this presumption, waiver may not be lightly inferred (see, Leadertex, Inc. v. Morganton Dyeing Finishing Corp., supra, at 25).
There is no inflexible or mechanical rule as to what constitutes a waiver of the right to arbitrate. Rather, determination of the issue depends on the facts and circumstances of each particular case (see, Leadertex, Inc. v. Morganton Dyeing Finishing Corp., supra, at 25; St. Mary's Med. Ctr. v. Disco Aluminum Prods. Co., 969 F.2d 585, 587-588; Jones Motor Co. v. Chauffeurs, Teamsters Helpers, Local Union No. 633, 671 F.2d 38, 44, cert denied 459 U.S. 943). Among the factors to be considered are the extent of the party's participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced (see, Leadertex, Inc. v. Morganton Dyeing Finishing Corp., supra, at 25; Jones Motor Co. v. Chauffeurs, Teamsters Helpers, Local Union No. 633, supra, at 44; Weight Watchers v. Weight Watchers Intl., 398 F. Supp. 1057, 1059). Considering all of the facts and circumstances of this case, a finding of waiver is not warranted.
The defendant's remaining contention is without merit.
Ritter, J. P., Thompson, Altman and McGinity, JJ., concur.