Opinion
April 27, 2000.
Order, Supreme Court, New York County (Louis York, J.), entered on or about October 7, 1999, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment, granted that branch of defendant's cross motion for summary judgment seeking dismissal of plaintiff's Executive Law § 296 Exec.(16) claim and denied that branch of the cross motion seeking dismissal of plaintiff's breach of contract claim, unanimously affirmed, without costs.
Andrew A. Kimler, for plaintiff-appellant-respondent.
James P. Clark, for defendant-respondent-appellant.
MAZZARELLI, J.P., ELLERIN, LERNER, RUBIN, ANDRIAS, JJ.
The motion court properly dismissed plaintiff's Executive Law § 296 Exec.(16) claim. Plaintiff's breach of contract claim was, however, properly sustained as against defendant's contention that, pursuant to the parties' contract, it was one properly to be pursued in arbitration. Defendant waived any right to arbitrate the claim by affirmatively participating in this lawsuit (see,DeSapio v. Kohlmeyer, 35 N.Y.2d 402, 405; Poleday Realty, Inc. v. Christ, 171 A.D.2d 603, 605).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.