OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Appellants chose to litigate this dispute in a declaratory judgment action (39 NY2d 964). Having taken that course they waived the right to submit the question to arbitration (Matter of Zimmerman v Cohen, 236 NY 15; cf. Denihan v Denihan, 34 NY2d 307, 310; Hadjioannou v Avramides, 40 NY2d 929, 931; Validity & Enforceability of Provision for Binding Arbitration and Waiver Thereof, Ann., 24 ALR3d 1325).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.