Elliot v. Green Bus Lines, Inc. — 58 N.Y.2d 76

Majority

p. 76

Gloria Elliot, as Guardian of Bridgette Elliot, an Infant, Respondent, v Green Bus Lines, Inc., Appellant.

Argued January 11, 1983;

decided February 10, 1983

POINTS OF COUNSEL

J. Irwin Shapiro and Stephen C. Glasser for appellant.

I. The court below erred in holding that respondent could assert the general toll of infancy under CPLR 208 as a defense to her failure to confirm the arbitration award

p. 77

within one year as required by CPLR 7510 since CPLR 7512 — and not CPLR 208 — governs extensions of time to confirm the award. (Teachers Assn. of Tarrytowns v Tarrytown Bd. of Educ., 59 AD2d 890 ; Matter of Belli [Matthew Bender & Co.], 24 AD2d 72 ; Palidoro v Feuer Transp., 35 Misc 2d 385 ; Gregoire v Putnam's Sons, 298 NY 119 ; Schmidt v Merchants Desp. Transp. Co., 270 NY 287 ; Ratka v St. Francis Hosp., 44 NY2d 604 ; Chilford v Centred City Cold Stor. Co., 166 Misc 780 ; Carrick v Center Gen. Hosp., 51 NY2d 242 ; Insurance Co. of Greater N. Y. v 156 Hamilton Realty Corp., 72. AD2d 403; Matter of Erhardt v MVAIC, 53 AD2d 962 .) II. Respondent, having initiated an arbitration proceeding and successfully obtained an arbitration award on the merits, was bound to comply with the other procedural requirements of CPLR article 75, including that of CPLR 7512. (Frehe v Schildwachter, 289 NY 250 ; Gundershein v Bradley-Mahony Coal Corp., 295 NY 539 ; Rembrandt Inds. v Hodges Int., 38 NY2d 502 ; Matter of Singleton v MVAIC, 41 Misc 2d 469 ; Matter of Silver, 72 Misc 2d 963 .)

Bertram Herman, P. C., for respondent.

I. The failure to plead the Statute of Limitations as an affirmative defense in any of the actual pleadings, waives the defense of Statute of Limitations. (Nassau Ins. Co. v Hernandez, 65 AD2d 551 ; Matter of Yak Taxi v Teke, 41 NY2d 1020 ; McDonald v Ames Supply Co., 22 NY2d 111 ; Ratka v St. Francis Hosp., 44 NY2d 604 ; Matter of Scuderi v Board of Educ., 49 AD2d 942 .) II. The special proceeding required to be commenced to confirm the arbitrator’s award was done in a timely manner. (Sadler v Horvath, 44 AD2d 905 ; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379 .) III. CPLR 7512 has no application in the within matter. (Matter of Saddler Textiles [Winston Uniform Corp.], 39 AD2d 845 ; Ratka v St. Francis Hosp., 44 NY2d 604 ; Pulsifer v Olcott, 63 Misc 2d 524 , 41 AD2d 781 ; MVAIC v Eisenberg, 18 NY2d 1 ; Matter of Smith [Great Amer. Ins. Co.], 29 NY2d 116 .) IV. The commencement of the special proceeding to confirm the arbitrator’s award is a separate special proceeding wherein the tolling provision of CPLR 208 applies. It is not a continuation of an action in progress.

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OPINION OF THE COURT

The toll for infancy prescribed in CPLR 208 does not apply to an application pursuant to CPLR 7510 to confirm an arbitration award.

The infant petitioner suffered injuries while riding on one of respondent’s buses on January 8, 1977. A guardian ad litem was thereafter appointed to institute a no-fault arbitration proceeding on behalf of the infant. An award was made in favor of the infant on May 1, 1979. For reasons which do not appear, the application made by the guardian to confirm the award was delayed until December, 1980, well beyond the one-year period prescribed in CPLR 7510.

Special Term denied the application as time-barred. The Appellate Division reversed and remitted the proceeding to Special Term for determination of the merits, holding applicable the toll for infancy of CPLR 208. We reverse and dismiss the petition.

The special provisions governing applications for confirmations of awards in arbitration are expressly prescribed in CPLR article 75. CPLR 7510 provides that the application to confirm an award must be made within one year after its delivery. CPLR 7512 authorizes the court to extend the time within which an application to confirm an award must be made in the event of the death or incompetency of a party. Conspicuously omitted is any comparable provision with respect to the infancy of a party. In this circumstance it must be concluded, the more specific provisions overriding the more general, that the general tolling provisions in the event of infancy set forth in CPLR 208 have no application. In all but perhaps the most unusual case this would not work unacceptable hardship. Inasmuch as the appointment of a guardian ad litem will be required for the institution of the arbitration proceeding, that guardian will be available and authorized to make a timely application to confirm any award which may be made in the infant’s favor.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

p. 79

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Simons concur in Per Curiam opinion; Judge Meyer taking no part.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

Cases cited

Teachers Ass'n of the Tarrytowns v. Tarrytown Board of Education 59 AD2d 890 N.Y. App. Div. 1977-11-07 p. 77
In re the Arbitration between Belli & Matthew Bender & Co. 24 AD2d 72 N.Y. App. Div. 1965-10-26 p. 77
Palidoro v. Feuer Transportation, Inc. 35 Misc 2d 385 N.Y. Mun. Ct. 1962-05-25 p. 77
Gregoire v. G. P. Putnam's Sons 298 NY 119 N.Y. 1948-07-16 p. 77
Schmidt v. Merchants Despatch Transportation Co. 270 NY 287 N.Y. 1936-03-03 p. 77
Chilford v. Central City Cold Storage Co. 166 Misc 780 N.Y. Sup. Ct. 1938-03-26 p. 77
Carrick v. Central General Hospital 51 NY2d 242 N.Y. 1980-11-13 p. 77
Frehe v. Schildwachter 289 NY 250 N.Y. 1942-12-03 p. 77
Gundershein v. Bradley-Mahony Coal Corp. 295 NY 539 N.Y. 1946-07-23 p. 77
Rembrandt Industries, Inc. v. Hodges International, Inc. 38 NY2d 502 N.Y. 1976-01-08 p. 77
Singleton v. Motor Vehicle Accident Indemnification Corp. 41 Misc 2d 469 N.Y. Sup. Ct. 1963-09-20 p. 77
In re the Estate of Silver 72 Misc 2d 963 N.Y. Sur. Ct. 1973-01-24 p. 77
McDonald v. Ames Supply Co. 22 NY2d 111 N.Y. 1968-05-16 p. 77
Corbett v. Fayetteville-Manlius Central School District 34 AD2d 379 N.Y. App. Div. 1970-06-25 p. 77
Wilma Pulsifer v. Olcott 63 Misc 2d 524 N.Y. Sup. Ct. 1970-04-30 p. 77
People v. Bressette 41 AD2d 781 N.Y. App. Div. 1973-03-01 p. 77
Motor Vehicle Accident Indemnification Corp. v. Eisenberg 18 NY2d 1 N.Y. 1966-06-09 p. 77
In re the Arbitration between Smith 29 NY2d 116 N.Y. 1971-07-06 p. 77