In re the Arbitration between McGorman & Motor Vehicle Accident Indemnification Corp.

• Order entered May 26, 1967, unanimously reversed, on the law, the facts having been considered, with $30 costs and disbursements to appellant, and the motion to stay arbitration granted. The accident upon which the demand is founded occurred June 18, 1964. Action was commenced against Rivera, the alleged tort-feasor, on August 12, 1964. In February, 1965 Rivera’s carrier, Nationwide Insurance Company, disclaimed liability as to Rivera. At claimants’ request appellant appeared in the action on May 11, 1965, after reinstatement of the action which had been dismissed on April 25, 1965 for failure to serve a complaint. The action continued to be pressed thereafter by motions and with examinations before trial of the various parties. April 19, 1967 attorneys for claimants first served a demand for arbitration. Upon denial of its motion to stay arbitration respondent-appellant took this appeal. Upon the facts as they appear in this case claimants-respondents by their conduct are held to have waived their right to arbitration (see Matter of Terminal Auxiliar Marítima [Winkler], 6 N Y 2d 294, 299; Matter of Zimmerman v. Cohen, 236 N. Y. 15). The mere institution of the action here did not waive arbitration. The continued prosecution of such action, actively participated in by claimants, for more than two years after knowledge of the disclaimer evinced an intention to waive arbitration and proceed by action as claimants had a right to do. It is the totality of facts, together with claimants’ conduct, which leads us to conclude there was a waiver as a matter of law. Moreover, in light of the extensive pretrial work already completed by the parties, no sound reason appears why appellant should now be compelled to defend in two different forums. Concur — Stevens, J. P., Capozzoli, Tilzer, McNally and McGivern, JJ.