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ZACK ASSOCIATES, INC. v. SETAUKET FIRE DISTRICT

12 A.D.3d 439 (2004)

783 N.Y.S.2d 827

ZACK ASSOCIATES, INC., Respondent, v. SETAUKET FIRE DISTRICT, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 8, 2004.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant contends that the complaint should have been dismissed because the underlying contracts provided that all disputes were to be resolved by mediation/arbitration. However, even assuming the arbitration clause was enforceable as to all contracts, the defendant waived its right to arbitrate by actively participating in this litigation (see Sherrill v Grayco Bldrs.,

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