Defendant waived any right to arbitration by failing to raise it as a defense in its answer, asserting counterclaims, making a dispositive motion, and otherwise actively participating in this litigation for almost three years through the completion of extensive disclosure proceedings and the filing of a note of issue, all to the prejudice of plaintiff ( see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 371-372; see Matter of Advest, Inc. v Wachtel, 253 AD2d 659 [NASD arbitration subject to Federal Arbitration Act]). It does not avail defendant that plaintiff did not timely respond to defendant's untimely arbitration demand. Once waived, the right to arbitration cannot be regained ( Tengtu Intl. Corp. v Pak Kwan Cheung, 24 AD3d 170, 172).
[ See 2008 NY Slip Op 30855(U).]