Andresen & Co. v. Shepard
Decision Date | 29 October 1974 |
Citation | 45 A.D.2d 578,360 N.Y.S.2d 36 |
Parties | Application of ANDRESEN & CO. and Frederick Blum, Petitioners-Appellants, v. Seymour Lee SHEPARD and Philip Shapiro, Individually and as Executors of the Estate of Gussie Shapiro, Deceased, Respondents-Respondents. |
Court | New York Supreme Court — Appellate Division |
Kenneth A. Raskin, New York City, of counsel (Martin P. Unger, New York City, with him on the brief, Beekman & Bogue, New York City, for petitioners-appellants.
Arthur K. Ash, New York City, for respondents-respondents.
Before MARKEWICH, J.P., and KUPFERMAN, STEUER, TILZER and CAPOZZOLI, JJ.
The petition seeks a stay of arbitration on the ground that the claims sought to be arbitrated are barred by limitations of time. The law governing this situation is admirably clear and any confusion arising from interpretations should be laid to rest. In this case the agreement to arbitrate is conceded and found in a customer's agreement to open a stock brokerage account. No controversy existed at the time of making the agreement so, beyond dispute, this is an agreement to arbitrate any controversy that may arise in the future. The point is emphasized for reasons that will shortly appear.
Section 7502(b) CPLR reads:
'If, at the time that a demand for arbitration was made or a notice of intention to arbitrate was served, the claim sought to be arbitrated would have been barred by limitation of time had it been asserted in a court of the state, a party may assert the limitation as a bar to the arbitration on an application to the court as provided in section 7503 or subdivision (b) of section 7511.'
Section 7503(b) referred to in 7502(b) limits the right of a party to make the application for a stay to one who has not participated in the arbitration nor has served or been served with an application to compel arbitration. In the pending matter the moving party has not participated in the arbitration, nor has a motion to compel arbitration been served by or on them.
It therefore appears that no exception in the statute bars the application and its plain mandate must be followed. That mandate is for the court to decide whether the claim is or is not time barred. It is true that in the instant matter the decision will not be simple, as arguable questions are present as to what statute applies. But the statute does not excuse the court from deciding the issue because difficult questions of fact or law may be present. Nor can it be maintained that the broad terms of the arbitration agreement make this question one for the arbitrators. Firstly those terms do not specifically include the question of limitations, and the fact that the statutory authorization for arbitration makes the court the proper forum interprets the clause otherwise. Of...
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