Futterman Industries, Ltd. v. Imptex International Corp.

146 A.D.2d 520, 536 N.Y.S.2d 85, 1989 N.Y. App. Div. LEXIS 335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1989
• Status: Published

Opinion

— Order and judgment (one paper), Supreme Court, New York County (Elliott Wilk, J.), entered on or about May 2, 1988, permanently staying arbitration, unanimously reversed, on the law, with costs and disbursements, the stay vacated and the petition dismissed.

It was error to stay arbitration on the basis of the contractual limitation of one year after breach on the bringing of an arbitration proceeding. The contract contained the following broad arbitration provision: "Any controversy arising out of, or relating to this contract or any modification or extension thereof * * * shall be settled by arbitration”. Respondent brought the arbitration proceeding to recover payment on an unpaid invoice for a shipment of textile goods. Petitioner thereupon sought and obtained a stay solely on the ground that respondent had failed to initiate arbitration within one year of the breach.

It has been repeatedly held by the courts of this State that all issues as to the enforceability of contractual time limitations for the commencement of arbitration proceedings arising under a broad arbitration clause are deemed procedural and are to be exclusively determined by the arbitrator, not the courts. (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358.) Concur — Sullivan, J. P., Ross, Milonas, Kassal and Ellerin, JJ.