Ben Miller, Inc. v. Marcus Bros. Textiles, Inc.
| Citation | 59 A.D.2d 850,399 N.Y.S.2d 112 |
| Parties | BEN MILLER, INC., Petitioner-Respondent, v. MARCUS BROTHERS TEXTILES, INC., Respondent-Appellant. |
| Decision Date | 03 November 1977 |
| Court | New York Supreme Court — Appellate Division |
H. Adler, New York City, for petitioner-respondent.
S. J. Stein, New York City, for respondent-appellant.
Before LUPIANO, J. P., and BIRNS, EVANS and LANE, JJ.
Judgment Supreme Court, New York County, entered June 14, 1977, which granted a stay of arbitration and denied the cross-motion to dismiss the application for a stay as untimely is unanimously reversed on the law, without costs and without disbursements and the arbitration is directed to proceed forthwith.
In January 1977, appellant served respondent with a demand for arbitration in New York City. The demand placed respondent on notice that it would be precluded from objecting to arbitration unless objection was interposed to the proceeding within 20 days after service of the Demand for Arbitration.
Respondent, a Texas corporation, initiated a proceeding in U.S. District Court in Texas within the 20 day period, challenging the validity of the agreement to arbitrate. Appellant agreed to hold the arbitration in abeyance pending decision of the Texas Court. The proceeding was dismissed for lack of personal jurisdiction over appellant without the Court reaching the merits of the case.
Immediately after the dismissal by the Texas Court, respondent commenced a proceeding in the New York Supreme Court for a stay and a determination of the validity of the arbitration agreement. Appellant cross-moved to dismiss claiming that the stay application was untimely because it had been made more than 20 days after respondent received the demand for arbitration.
The controlling statute, CPLR 7503(c), in pertinent part, reads as follows:
"A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time . . ."
Respondent contends it complied with the requirements of CPLR 7503(c) on two counts. First, within the 20 day period, it commenced a proceeding to stay arbitration in the Texas Court. Second, appellant voluntarily consented to a stay of...
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