In re the Arbitration between Shefa Brucha Inc. & Topaz Electronics, Inc.

233 A.D.2d 276, 650 N.Y.S.2d 134, 1996 N.Y. App. Div. LEXIS 12117

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1996
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Salvador Collazo, J.), entered September 14, 1995, which granted petitioners’ application to confirm an arbitration award and awarded petitioners the principal sum of $221,947, unanimously affirmed, without costs.

An arbitration award may be vacated where the movant "neither participated in the arbitration nor was served with a notice of intention to arbitrate” (CPLR 7511 [b] [2]). The absence of such service must be proven by competent evidence from a witness with personal knowledge (Matter of Asoma [Bangkok] Co. [Thai Flourite Processing Co.], 96 AD2d 773, affd 61 NY2d 721), and there was no such proof at bar. Therefore, appellants cannot raise the claim that there was no valid agreement to arbitrate (see, Matter of Commerce & Indus. Ins. Co. v Nester, 227 AD2d 556). Nor can appellants raise any issue under the Statute of Limitations (Matter of Nixon Taxi Corp. [State Farm Gen. Ins. Co.], 128 AD2d 616, 619). We have considered appellants’ remaining arguments and find them to be without merit. Concur—Rosenberger, J. P., Rubin, Ross, Tom and Andrias, JJ.