Weiser v. Robert K. Futterman & Assoc.s LLC

• Decision Date: 18 March 2011
• Docket Number: Docket Number: 113492/10
• Parties: KENNETH D. WEISER and PETER NTJSSBAUM, Petitioners v. ROBERT K. FUTTERMAN & ASSOCIATES, LLC, Respondent
• Court: New York Supreme Court

KENNETH D. WEISER and PETER NTJSSBAUM, Petitioners
v.
ROBERT K. FUTTERMAN & ASSOCIATES, LLC, Respondent

Docket Number: 113492/10

New York Supreme Court

DATED: March 18, 2011

2011 NY Slip Op 30679

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DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Petitioners seek to stay an arbitration demanded by respondent real estate brokerage firm, against petitioners as well as Mereof, LLC, to enforce an exclusive sales agreement that designates respondent the exclusive broker to sell Mereof's property and includes an arbitration provision. C.P.L.R, § 7503(b). Petitioner Weiser was a manager of Mereof from September 2003 to November 2009. Since then, petitioner Nussbaum has been a manager of Mereof. Petitioners claim they are neither subject to the arbitration provision nor liable for Mereof's breach of its obligations to respondent.

I. THE EXCLUSIVE SALES AGREEMENT

Respondent's written agreement with Mereof dated November 29, 2007, and signed by Weiser for Mereof conferred on respondent the exclusive right to sell, net lease, or otherwise dispose of Mereof's property at 75 Greenwich Avenue, Greenwich, Connecticut. Petitioners maintain that they are neither parties to nor beneficiaries of this agreement; they owned no interest in either

Mereof or the 75 Greenwich Avenue property.

Most importantly for purposes of this proceeding, ¶ 8 of the agreement provides:

Any and all disputes arising out of or with respect to this Agreement shall be settled by arbitration before the American Arbitration Association in the County, City and State of New York. Arbitration shall be conclusive, final, and binding, with no right to appeal.

Petition, Ex. 2 at 2.

II. RESPONDENT'S.DEMAND FOR ARBITRATION

On July 28, 2 010, respondent filed with the American Arbitration Association (AAA) a demand for arbitration of respondent's claim against petitioners under the Exclusive Sales Agreement. Id., Ex. 2. Respondent also served petitioners with the demand, which they do not deny.

The parties' agreement does not set forth any requirements for service of a demand for arbitration. C.P.L.R. § 7503(b), which petitioners have invoked and which governs this proceeding, provides that: "Subject to the provisions of subdivision (c), a party who has not participated in the arbitration... may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with...." C.P.L.R. § 7503(c) provides that:

A party may serve upon another party a demand for arbitration... 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.... Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay. arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he

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shall be so precluded.

Thus § 7503 (c)'s requirements for service of an arbitration demand apply only where the party demanding arbitration seeks to impose a limitation of 2 0 days on the parties served to commence a proceeding to stay arbitration. Fiveco, Inc. v. Haber, 11 N.Y.3d 140, 144 (2008); Matter of State Farm Mut. Auto. Ins. Co., 3 A.D.3d 418, 419 (1st Dep't 2004). See Commerce & Indus. Ins. Co. v. Neater. 90 N.Y.2d 255, 262 (1997); Arc Elec. & Mech. Contrs. Corp. v. Invensvs Bldq. Svs.. 2 A.D.3d 314, 316-17 (1st Dep't 2003).

Absent respondent's opposition to the petition on those statute of limitations grounds, nothing dictates that respondent serve petitioners with their arbitration demand by any means. C.P.L.R. § 7503(b) allows petitioners, on the other hand, to seek "to stay arbitration on the ground that a valid agreement was not made or has not been complied with" free of any time limitation.

III. THE ARBITRATION

Petitioners...