In re the Arbitration between IMG Publishing & Viesti

Appellate Division of the Supreme Court of New York

In re the Arbitration between IMG Publishing & Viesti

170 A.D.2d 268

Appellate Division of the Supreme Court of the State of New York·Decided February 14, 1991·Published·Cited by 3 cases

Opinion

Judgment of the Supreme Court, New York County (Kenneth L. Shorter, J.), entered February 13, 1990, which granted petitioner’s application to stay arbitration sought by respondent, pursuant to a Demand for Arbitration, unanimously affirmed, with costs.

Petitioner was neither a party to nor signatory of the contracts between Miller Press, Inc. and its employee, respondent Joseph Viesti. Therefore, absent an agreement to arbitrate between petitioner and respondent, petitioner’s application to stay arbitration was properly granted, without regard to the statutory twenty-day period of CPLR 7503 (c). (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 267-268.) A person may not be bound to arbitrate by mere inaction for twenty days where no agreement to arbitrate has ever been made. (Supra, at 267.) Furthermore, the fact that petitioner’s counsel, on behalf of Miller, selected arbitrators or hearing dates, does not evince an intention by petitioner to arbitrate the dispute. (Matter of Lory Fabrics [Dress Rehearsal], 78 AD2d 262.) Concur—Sullivan, J. P., Carro, Wallach, Kupferman and Kassal, JJ.

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Judgment of the Supreme Court, New York County (Kenneth L. Shorter, J.), entered February 13, 1990, which granted petitioner’s application to stay arbitration sought by respondent, pursuant to a Demand for Arbitration, unanimously affirmed, with costs.

Petitioner was neither a party to nor signatory of the contracts between Miller Press, Inc. and its employee, respondent Joseph Viesti. Therefore, absent an agreement to arbitrate between petitioner and respondent, petitioner’s application to stay arbitration was properly granted, without regard to the statutory twenty-day period of CPLR 7503 (c). (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 267-268.) A person may not be bound to arbitrate by mere inaction for twenty days where no agreement to arbitrate has ever been made. (Supra, at 267.) Furthermore, the fact that petitioner’s counsel, on behalf of Miller, selected arbitrators or hearing dates, does not evince an intention by petitioner to arbitrate the dispute. (Matter of Lory Fabrics [Dress Rehearsal], 78 AD2d 262.) Concur—Sullivan, J. P., Carro, Wallach, Kupferman and Kassal, JJ.

In re the Arbitration between IMG Publishing & Viesti, 170 A.D.2d 268 (N.Y. Ct. App. 1991).

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Opinion

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