SSM REALTY GROUP, LLC, plfap, v. 20 SHERMAN ASSOCIATES, LLC def-res

8717. SSM REALTY GROUP, LLC, plfap, v. 20 SHERMAN ASSOCIATES, LLC def-res — Fred L. Seeman, New York, for ap — Altschul & Altschul, New York (Mark M. Altschul of counsel), for res — `—Order, Supreme Court, New York County (Carol R. Edmead, J.), entered March 5, 2012, which, to the extent appealed from, denied plaintiff’s motion for summary judgment striking defendants’ eighth, ninth and tenth affirmative defenses and declaring that Article 9.5 of defendant 20 Sherman Associates, LLC’s Operating Agreement is null and void and that plaintiff is the manager of the LLC, unanimously affirmed, with costs.

The Operating Agreement states, “Any controversy or claim arising out of or relating to this Agreement shall be finally resolved by arbitration.” Contrary to plaintiff’s claim, defendants did not waive the right to arbitrate by merely serving an answer and opposing plaintiff’s motion (see e.g. Stark v. Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 67 [2007]; Braun Equip. Co. v. Borelli Assoc., 220 AD2d 311 [1st Dept 1995]; Two Cent. Tower Food v. Pelligrino, 212 AD2d 441, 442 [1st Dept 1995]).