In Singer v. Seavey, 83 AD3d 481, 923 N.Y.S.2d 29 (1st Dept 2011), the trial court denied the defendants' motion to dismiss and their motion to compel arbitration.
The First Department reversed, granting the motion to compel arbitration and otherwise staying the proceedings pending arbitration.
The Court held that the "[d]efendants did not waive their right to arbitrate by moving to dismiss the complaint and appealing from the partial denial of the motion." Id. at 482.