Appellate Division of the Supreme Court of the State of New York, Second Department.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly determined that the defendant J. Petrocelli Construction, Inc. (hereinafter Petrocelli), did not waive its right to arbitrate by participating in this litigation. Because Petrocelli raised the requirement of arbitration as an affirmative defense in its answer, and because there are arbitrable and nonarbitrable issues involved, it did not waive its right to arbitration...
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