#### Jamal Hyde, as Subrogee of Tilletha Hyde, Appellant, v Jewish Home Lifecare, Respondent.

[53 NYS3d 57]

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 27, 2016, which granted the branch of defendant’s motion seeking to compel arbitration and to dismiss the action, unanimously reversed, on the law, without costs, the motion to compel and to dismiss denied, and the matter remanded for determination of the branch of defendant’s motion seeking to change venue.

Plaintiff, on behalf of his grandmother, Tilletha Hyde, entered into an agreement to arbitrate disputes with defendant nursing home, when the grandmother was admitted there in 2015. The agreement specified arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA). After the grandmother fell and broke her hip, plaintiff attempted to commence an arbitration by filing a demand for arbitration with the AAA. The AAA then sent email correspondence to the parties, notifying defendant of plaintiff’s demand and asking the parties to return the form to indicate their agreement to AAA administration of the dispute under the Consumer Arbitration Rules. After receiving no response from defendant by the deadline set in the first letter, the AAA sent a second letter notifying the parties that it was closing its file on the matter because the required submission had not been received from defendant, and inviting any questions.

Plaintiff then commenced this action in Supreme Court. Defendant answered, asserting fifteen affirmative defenses (none related to the arbitration agreement), appeared for and participated in a preliminary conference, and served a demand for authorizations, before moving to compel arbitration approximately four months after the commencement of plaintiff’s action.

Defendant’s failure to participate in arbitration after being notified of plaintiff’s demand, followed by its participation in litigation without raising the issue of arbitration, “manifested a preference ‘clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration’” *(Sherrill v Grayco Bldrs.,*64 NY2d 261, 272 [1985]; *compare Byrnes v Castaldi,*72 AD3d 718, 720 [2d Dept 2010] [no waiver where, among other things, the appellants repeatedly raised the issue of arbitration before the assigned justice and moved to compel arbitration pursuant to the time frame *675directed by the court]). Defendant’s unequivocal, prior waiver of the right to arbitrate “may not be unilaterally recalled” *(Rusch Factors v Fairview Mfg. Co.,*34 AD2d 635, 635 [1st Dept 1970]).

The affidavit of defendant’s associate general counsel, which was proffered in reply, claimed that he had overlooked the AAA’s letters until some unspecified time after the deadline for returning the form had passed. However, he offered no coherent or credible explanation for defendant’s continued failure to raise the issue of arbitration, even after he learned of plaintiff’s demand for arbitration. As defendant’s conduct has caused unnecessary delay and expense in resolving the parties’ dispute, it would be unfair to now require plaintiff to return to the arbitration forum.

We have considered defendant’s remaining arguments and find them unavailing.

Concur — Sweeny, J.P., Acosta, Renwick, Moskowitz and Kahn, JJ.