General Acc. Fire & Life Assur. Corp., v. Cerretto

Citation303 N.Y.S.2d 223,60 Misc.2d 216
PartiesApplication of GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Petitioner, for an Order staying the Arbitration of the Claims of Anthony R. CERRETTO before the American Arbitration Association, Respondent.
Decision Date31 July 1969
CourtUnited States State Supreme Court (New York)
MEMORANDUM

MARSHALL E. LIVINGSTON, Justice.

This motion is brought for an order staying arbitration, under CPLR 7503, in an automobile negligence suit.

The question to be decided is whether or not the petitioner is barred by the 10-day limitation of time fixed in subdivision (c) of CPLR 7503.

The key paragraph of the affidavit submitted by the attorney for the petitioner reads as follows:

'6. That on or about the 21st day of May, 1969, your petitioner herein received by mail a Demand for Arbitration, a copy of which is annexed hereto and marked Exhibit 'A'. The attorneys for the respondent, on May 29, 1969, gave your deponent's office a one-week extension of time within which to either move for a stay of arbitration or respond to the Demand for Arbitration. Accordingly, the within application is timely made.'

Petitioner's notice of motion was made and served on June 3, the 13th day, and was returnable more than one month thereafter, on July 8, 1969.

On these facts, the first matter for determination is the conclusion asserted in the last sentence of paragraph '6' of the affidavit: 'Accordingly, the within application is timely made.'

Unfortunately for the petitioner, the Court of Appeals on April 23, 1969, affirmed, without opinion, a decision of the Appellate Division First Department (Jonathan Logan, Inc. (Stillwater Worsted Mills), 31 A.D.2d 208, 295 N.Y.S.2d 853, affd. 24 N.Y.2d 898, 301 N.Y.S.2d 636, 249 N.E.2d 477). In that instance, an order to show cause bringing on an application to stay arbitration was signed by the judge on the 9th day, made returnable on the 20th day and was not served until the 16th day. The order contained a stay of all proceedings until the matter was heard. The Appellate Division held that the proceeding was commenced with the service of the order to show cause.

The opinion of the court by Mr. Justice Eager in part stated (p. 211, 295 N.Y.S.2d p. 856):

'Finally, the conclusions herein reached find support in the cardinal rule that, whenever possible, statutes should be construed and applied in such a manner as to give effect to the general purpose for which they were enacted. (See McKinney's, Statutes, §§ 92, 96.) It is well known that article 75 of the CPLR was enacted for the purpose of promotion of arbitration as a means for the expeditious settlement of disputes. * * * Such purpose would be thwarted by a construction which would permit the extension, by order to show cause or...

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4 cases
  • Knickerbocker Ins. Co. v. Gilbert
    • United States
    • New York Supreme Court — Appellate Division
    • 7 Julio 1970
    ...to the court for a stay of arbitration as to which notice is duly given.' (Italics mine.) In Matter of General Acc. Fire & Life Assur. Corp. (Cerretto), 60 Misc.2d 216, 303 N.Y.S.2d 223, the Court held that parties could not stipulate to extend the time fixed by CPLR 7503 (subd. (c)) for ma......
  • Mell v. Allstate Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • 30 Noviembre 1970
    ...of Sisters of Charity of St. Vincent De Paul (Boegel & Allodi), 32 A.D.2d 818, 302 N.Y.S.2d 462; Matter of General Acc. Fire & Life Assur. Corp. (Cerretto), 60 Misc.2d 216, 303 N.Y.S.2d 223.) The order denying the motion for reargument is not appealable, and the appeal therefrom should be d......
  • Spychalski v. Utica Mut. Ins. Co.
    • United States
    • New York Supreme Court
    • 22 Septiembre 1976
    ...Worsted Mills), 31 A.D.2d 208, 295 N.Y.S.2d 853, affd., 24 N.Y.2d 898, 301 N.Y.S.2d 636, 249 N.E.2d 477; Matter of General Accident Fire (Cerretto), 60 Misc.2d 216, 303 N.Y.S.2d 223). Were I to leave the matter here and direct arbitration to go forward because technically Continental has no......
  • Allstate Ins. Co. v. Carrillo
    • United States
    • New York Supreme Court
    • 21 Marzo 1972
    ...or certified mail.' The Court, in arriving at its decision, has not overlooked the case of Mtr. of Gen. Acc. Fire & Life Assur. Corp. (Cerretto), 60 Misc.2d 216, 303 N.Y.S.2d 223, where the learned Justice of the Supreme Court, Monroe County, held that the reliance by petitioner's attorney ......

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