In Cusimano v. Schnurr (120 AD3d 142 [1st Dept 2014], lv granted 24 NY3d 909), the Court held that dicta in Diamond Waterproofing (4 NY3d at 252) and Howsam v. Dean Witter Reynolds, Inc. (537 U.S. 79, 84, [2002]) did not change the long-standing rule under the FAA that the issue of waiver by litigation conduct is for the court. The Cusimano Court further held that the fact that the arbitration agreements referenced the AAA rules did not require the issue of waiver to be decided by the arbitrator. (120 AD3d at 149, n 8.) In Cusimano (120 AD3d at 149-150), an FAA case, the Court held that the waiver issue was for the Court, and then applied both federal and state cases in determining whether a waiver had occurred. The decision does not indicate whether the arbitration agreement provided for application of New York law.