11-20-08
A-2834-07T1
At issue is whether a defendant, who answered a plaintiff's
complaint and counterclaimed without asserting the affirmative
defense of the promise to arbitrate, waived her contractual
right to arbitration. We held that under the circumstances,
where defendant did not initiate the litigation and actively
attempted to extricate herself therefrom, where minimal
discovery was exchanged, and where the six-month delay in
invoking the contractual right neither benefited defendant nor
caused demonstrable prejudice to plaintiff, defendant should not
be deprived of the arbitration remedy she bargained for.
