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CADIGAN v. LIBERTY HELICOPTERS, INC.

Index No. 152286/18, Appeal No. 16189, Case No. 2021-03926.

206 A.D.3d 523 (2022)

168 N.Y.S.3d 815

2022 NY Slip Op 04088

Jerry Cadigan et al., Respondents-Appellants, v. Liberty Helicopters, Inc., Defendants, Apical Industies, Respondent, and NY On Air Limited Liability Company et al., Appellants-Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided June 23, 2022.

Attorney(s) appearing for the Case

Condon & Forsyth LLP, New York ( Allison M. Surcouf of counsel), for appellants-respondents.

Pollack, Pollack, Isaac & DeCicco, LLP, New York ( Brian J. Isaac of counsel), for respondents-appellants.

KMA Zuckert LLC, New York ( David Y. Loh of counsel), for respondent.

Concur—Manzanet-Daniels, J.P., Webber, Scarpulla, Shulman, Higgitt, JJ.

NYON waived its forum selection clause defense by participating in this litigation and engaging in extensive discovery for three years (see CDR Créances S.A.S. v Cohen, 77 A.D.3d 489, 490 [1st Dept 2010]; Jones v Eon Labs, Inc., 43 A.D.3d 711 [1st Dept 2007]). Contrary to NYON's contention, plaintiffs would suffer prejudice by the enforcement of the forum selection clause at this stage...

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