Kinckle v. Gasthalter

128 A.D.2d 504, 512 N.Y.S.2d 435, 1987 N.Y. App. Div. LEXIS 44198

Opinion

In an action, inter alia, to recover damages for dental malpractice, the defendants appeal from an order of the Supreme Court, Westchester County (Slifkin, J.), entered on July 12, 1985, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

The waiver clause in the arbitration consent form signed by plaintiff Edmund Kinckle, Jr. (hereinafter the plaintiff) with the Ninth District Dental Society in which the plaintiff agreed not to bring an action against the defendants was not pleaded as an affirmative defense by the defendants in their answer in this action. They have, therefore, waived that defense in this action (see, Marcoux v Marcoux, 123 AD2d 844; Surlak v Surlak, 95 AD2d 371, 383). For that reason, Special Term properly denied the defendants’ motion for summary judgment. Mollen, P. J., Weinstein, Fiber and Sullivan, JJ., concur.