In re the Arbitration between Initial Trends, Inc. & Campus Outfitters, Inc.

90 A.D.2d 716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1982
• Status: Published

Opinions

Order, Supreme Court, New York County (Fraiman, J.), entered on May 28,1982, which denied petitioner-appellant’s motion to stay arbitration and granted respondent’s cross motion to compel arbitration is affirmed, with costs. These parties entered into four contracts of sale whereby petitioner, a New York textile converter, would sell certain fabric to respondent, a Connecticut manufacturer of children’s school uniforms. These contracts were entered into between January, 1980 and April, 1981, and each contained a broad arbitration clause. By letter dated December 21,1981, which was sent to petitioner by certified mail, respondent demanded arbitration of a controversy (defective goods) arising out of the April, 1981 contract. Thereafter, by letter dated January 11, 1982, respondent sought arbitration under the remaining three contracts. This latter demand, however, was not sent to petitioner as is required by CPLR 7503 (subd [c]), but rather to petitioner’s attorney by certified mail. Special Term concluded that arbitration should proceed as to all four contracts. The dissent would limit arbitration to the last contract (April, 1981). However, a majority of this court is of the opinion that Special Term was correct in directing that arbitration proceed pursuant to all contracts. Although the demand was forwarded to a nonparty, this defect does not render the demand null and void, as urged by the Presiding Justice. This irregularity merely serves to toll the time limit within which petitioner may move to stay this proceeding. (Matter of Board of Educ. v Palmyra-Macedon Faculty Assn., 78 AD2d 765, mot for lv to app den 53 NY2d 603.) In Palmyra (p 766), the court noted “[s]ince it is undisputed that respondent had actual notice of the demand and an opportunity to judicially review whether arbitration was an appropriate remedy in this case, it can hardly claim the notice was void.” On the facts now before us, it cannot be argued that petitioner did not receive notice that arbitration was demanded since petitioner timely asserted his statutory right to stay arbitration pursuant to CPLR 7503 (subd [c]). Petitioner received the protection guaranteed by statute and fully participated in subsequent proceedings. Concur — Ross, Markewich, Bloom and Asch, JJ.