Key Takeaway
Court ruling on waiver of arbitration rights through litigation conduct, including counterclaims and participation factors in New York insurance disputes.
This article is part of our ongoing arbitrations coverage, with 42 published articles analyzing arbitrations issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Willer v Kleinman, 2014 NY Slip Op 01164 (2d Dept. 2014)
You agree to arbitrate or are a forced participant in an arbitration. Assuming there is no other way to wiggle out of being subjected to AAA jurisdiction, you proceed to file a complaint. Your adversary answers your complaint and pleads counterclaims that bear on the merits of the arbitration. Are you out of the woods? Precedent suggests that you are.
“However, the defendants, by their conduct in this lawsuit, waived arbitration. As this Court explained in Reynolds & Reynolds Co., Automotive Sys. Div. v Goldsmith Motor Corp. (251 AD2d 312, 313),”here is no inflexible or mechanical rule as to what constitutes a waiver of the right to arbitrate. Rather, determination of the issue depends on the facts and circumstances of each particular case … Among the factors to be considered are the extent of the party’s participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced” (citations omitted).
While a party who commences an action waives arbitration, the same cannot be said for a defendant (see De Sapio v Kohlmeyer, 35 NY2d 402, 405). A defendant who submits an answer, or submits a pre-answer motion to dismiss the action, does not waive arbitration, especially if the arbitrability of the controversy is asserted as a ground to dismiss the action (see Flynn v Labor Ready, 6 AD3d 492; Spatz v Ridge Lea Assoc., 309 AD2d 1248; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614). However, in the instant case, the defendants asserted counterclaims related to issues in the main action, against both plaintiffs, including Nadia Willer, who is united in interest with Justin Willer, but is not a party to any arbitration agreement (see Dembitzer v Chera, 305 AD2d 531, 532). Further, the defendants sought and obtained discovery (see De Sapio v Kohlmeyer, 35 NY2d 402, 405).
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This waiver doctrine is relevant across all no-fault defense arbitration proceedings. A defendant who waives arbitration by asserting counterclaims must then meet a prima facie burden on the merits in the Civil Court action. For a complete reference on arbitration procedures and waiver rules in New York, see the legal encyclopedia.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
No-Fault Arbitrations in New York
No-fault arbitration is the primary forum for resolving disputes between medical providers and insurers over claim denials. The arbitration process has its own procedural rules, evidentiary standards, and appeal mechanisms — including master arbitration and Article 75 judicial review. Understanding arbitration practice is essential for any attorney handling no-fault claims. These articles cover arbitration procedures, hearing strategies, award enforcement, and the grounds for challenging arbitration outcomes in court.
42 published articles in Arbitrations
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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