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Welltech, Inc. v. National Union Fire Insurance Co. of Pittsburgh

299 A.D.2d 228 Court N.Y. App. Div. Decision date 2002-11-19 English

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p. 228
In the Matter of Welltech, Inc., et al., Appellants, v National Union Fire Insurance Company of Pittsburgh, Pa., Respondent.
[749 NYS2d 415]

Order, Supreme Court, New York County (Herman Cahn, J.), entered February 19, 2002, which denied petitioners’ application to stay arbitration and granted respondent’s cross motion to compel arbitration, unanimously affirmed, with costs.

We reject petitioners’ argument that the timeliness and arbitrability of the claims that respondent seeks to arbitrate should be decided by the court in accordance with New York law (CPLR 7502 [b]; 7503 [a], [b]), rather than by the arbitrators in accordance with the Federal Arbitration Act (FAA). Absent further indications of intent, respondent’s inclusion of a CPLR 7503 (c) 20-day notice in its demand for arbitration and petitioner’s ensuing application to stay arbitration are not tantamount to an express New York choice-of-law provision governing enforcement of a broad arbitration clause that would

p. 229
otherwise be subject to the FAA and leave questions of timeliness and arbitrability to the arbitrators (cf. Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39 , 47). Assuming that respondent’s unilateral invocation of the 20-day time limit in CPLR 7503 (c) did not obligate petitioner to apply for a stay within 20 days (but see Matter of Propulsora Ixtapa Sur [Omni Hotels Franchising Corp.], 211 AD2d 546 , 548, lv denied 85 NY2d 805 ), and that petitioner’s motion for a stay within 20 days constituted an implied acceptance of the 20-day time limit, it does not follow that other New York arbitration rules governing arbitrability and timeliness became applicable by such acceptance (cf. Smith Barney, 91 NY2d at 49 ).

The IAS court’s statement that the parties’ contract was “for the term October 1, 1990 through October 1, 1995” should be disregarded. The scope and duration, meaning and effect of the various documents claimed to govern the parties’ relationship are for the arbitrators to decide. Concur — Williams, P.J., Nardelli, Rosenberger, Ellerin and Lerner, JJ.

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