Defendants did not waive their right to arbitrate by moving to dismiss the complaint and appealing from the partial denial of the motion ( see Flynn v Labor Ready, 6 AD3d 492). Nor, since defendants made their demand for arbitration before serving their answer, did they waive the right by asserting the cross claim ( See City Trade Indus., Ltd. v New Cent. Jute Mills Co., 25 NY2d 49, 55).
In light of this determination, we dismiss the appeal from the first order as academic.
The decision and order of this Court entered herein on December 9, 2010 ( 79 AD3d 511) is hereby recalled and vacated ( see 2011 NY Slip Op 69680[U] [2011] [decided simultaneously herewith]).
[Prior Case History: 2009 NY Slip Op 31302(U).]