Hoffman v. AKT in Motion, Inc.

186 N.Y.S.3d 214, 215 A.D.3d 554, 2023 NY Slip Op 02062

Opinion

Hoffman v AKT in Motion, Inc. (2023 NY Slip Op 02062)

Hoffman v AKT in Motion, Inc.

2023 NY Slip Op 02062

Decided on April 20, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 20, 2023
Before: Oing, J.P., González, Shulman, Higgitt, JJ.

Index No. 157935/19 Appeal No. 75 Case No. 2022-01037

[*1]Ariel Hoffman, Plaintiff-Respondent,

v

AKT In Motion, Inc., Defendant-Appellant.

Law Office of Craig Dietsch, Brooklyn (Craig Dietsch of counsel), for appellant.

Goddard Law PLLC, New York (Anthony P. Consiglio of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about September 23, 2021, which denied defendant's motion to compel arbitration and dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's contention that CPLR 7515, which bars mandatory arbitration of discrimination claims, renders the arbitration provision unenforceable is unavailing, as that provision applies prospectively (see CPLR 7515[b][i]), and postdates the arbitration agreement in this matter (see Curtis v Marino, 201 AD3d 584, 585 [1st Dept 2022]). Nonetheless, Supreme Court properly denied defendant's motion.

Defendant's 18-month participation in the litigation, which included a request for an extension of time to answer the complaint, the filing of an answer, appearance at a preliminary conference, and agreeing to a discovery schedule, amounts to a waiver of its contractual right to arbitrate (see JSBarkats PLLC v Response Scientific Inc., 149 AD3d 652, 652 [1st Dept 2017]).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 20, 2023