DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was to compel the plaintiffs to submit their claims individually to arbitration and substituting therefor a provision granting that branch of the motion to the extent of compelling the plaintiffs to submit their claims to arbitration and reserving for the arbitrator the issue of whether class-action arbitration is permissible and otherwise denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiffs commenced this action against the defendants Labor Ready, Inc., and Labor Ready Northeast, Inc. (hereinafter collectively Labor Ready), in which they alleged, inter alia, that the processing fees they were charged by Labor Ready to cash their paychecks in cash-dispensing machines constituted unlawful deductions from their wages under Labor Law § 193. The Supreme Court granted that branch of Labor Ready's motion which was to compel the plaintiffs to arbitrate their claims individually pursuant to an arbitration agreement, on the condition that Labor Ready pay the costs of arbitration after the plaintiffs paid the initial filing fees ( see Flynn v. Labor Ready, 193 Misc.2d 721).
"The right to arbitrate, like any other contractual right, may be modified, waived, or abandoned" ( Les Constructions Beauce-Atlas v. Tocci Bldg. Corp. of N.Y., 294 A.D.2d 409, 409-410). A determination that a party has waived the right to arbitrate requires a finding that the party engaged in litigation to such an extent as to "manifest a preference `clearly inconsistent with [that party's] later claim that the parties were obligated to settle their differences by arbitration' * * * and thereby elected to litigate rather than arbitrate" ( Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 272, quoting Matter of Zimmerman v. Cohen, 236 N.Y. 15, 19; see also Les Constructions Beauce-Atlas v. Tocci Bldg. Corp. of N.Y., supra).
Contrary to the plaintiffs' contention, Labor Ready did not waive its right to compel arbitration by serving a motion to dismiss prior to its answer, as a defendant is entitled to have the sufficiency of a complaint tested before a duty to seek arbitration arises ( see Matter of Haupt v. Rose, 265 N.Y. 108, 111; see also Singer v. Jefferies Co., 78 N.Y.2d 76; Matter of Terminal Auxiliar Maritima, S.A., 6 N.Y.2d 294). Furthermore, Labor Ready's prior motion to deny class certification did not "evince an affirmative acceptance of the judicial forum" ( Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v. Office of Labor Relations of City of N.Y., 45 N.Y.2d 735, 737). Upon consideration of all the circumstances, including any delay in seeking arbitration, any prejudice to the plaintiffs, and the extent of Labor Ready's participation in the litigation, Labor Ready did not waive its right to compel arbitration ( see Reynolds Reynolds Co., Automotive Sys. DN. v. Goldsmith Motor Corp., 251 A.D.2d 312).
The subject arbitration agreements signed by the plaintiffs provided, in essence, that any employment disputes were to be resolved by arbitration conducted by the American Arbitration Association. The agreements were silent as to whether class-action arbitration was permissible. Accordingly, the question of whether these claims may be submitted to arbitration as a class action is for the arbitrator to decide ( see Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444; Pedcor Mgt. Co., Welfare Benefit Plan v. Nations Personnel of Texas, 343 F.3d 355 [5th Cir 2003]).
The plaintiffs' remaining contentions as to the validity of the agreement to arbitrate are without merit ( see Green Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79; Adkins v. Labor Ready Inc., 303 F.3d 496).
FLORIO, J.P., KRAUSMAN, SCHMIDT and TOWNES, JJ., concur.