—[*1] Gibson, Dunn & Crutcher LLP, New York (Marshall R. King of counsel), for appellants.

Hogan Lovells, US LLP, New York (Sabrina H. Cochet of counsel), for Dorothy Singer, Norma Brandes, Mars Associates, Inc., Normel Construction Corp., Gary A. Singer, Brad C. Singer, Steven G. Singer, Wendy Brandes, Frieda Tydings, Adine D. Brandes, George Kleinman, GBK Associates Inc., Elise Weingarten, Loren Kleinman and Gayle Reisman, respondents.

M. Douglas Haywoode, Brooklyn, for John Edmonds, respondent.

Appeal from order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 16, 2009, which, to the extent appealed from, denied the motion by defendants Robert Seavey and BNA Realty Company to dismiss the cause of action for breach of fiduciary duty as against them, unanimously dismissed, without costs, as academic. Order, same court and Justice, entered January 13, 2010, which denied defendants' motion to compel arbitration, unanimously reversed, on the law, without costs, the motion granted, and all proceedings stayed pending arbitration.

Defendants did not waive their right to arbitrate by moving to dismiss the complaint and appealing from the partial denial of the motion (see Flynn v Labor Ready, 6 AD3d 492 [2004]). Nor, since defendants made their demand for arbitration before serving their answer, did they waive the right by asserting the cross claim (see City Trade & Indus., Ltd. v New Cent. Jute Mills Co., 25 NY2d 49, 55 [1969]).

In light of this determination, we dismiss the appeal from the first order as academic. Concur—Mazzarelli, J.P., Friedman, McGuire, Renwick and Richter, JJ. [Prior Case History: 2009 NY Slip Op 31302(U).]

[Recalled and vacated, see 83 AD3d 481.]