Schlaifer v. Kaiser

46 A.D.2d 850, 361 N.Y.S.2d 183, 1974 N.Y. App. Div. LEXIS 3494

Opinion

Judgment, Supreme Court, New York County, entered July 16, 1974, dismissing the petition and denying a stay of arbitration, unanimously reversed, on the law, without costs and without disbursements, and vacated, and the matter remanded for a preliminary hearing to determine if the proceeding is time-barred. The respondent, Samuel Kaiser (Kaiser), had entered into an employment contract with petitioner, Charles Sehlaifer & Co., Inc., (Sehlaifer), in 1964, which agreement was allegedly extended from time to time until respondent resigned in February, 1974. Kaiser also had entered into a stockholder’s agreement on March 31, 1964 which, by its terms, was to terminate two years thereafter. Disputes relating to the agreements were to be determined by arbitration. Sehlaifer’s claim is that since the cause of action of Kaiser accrued no later than April 1, 1966, it is now time-barred. Kaiser, however, takes the position that the stockholder’s agreement was repeatedly renewed until the time of his resignation and therefore the claim is still viable. CPLR 7503 (subd. [b]) and CPLR 7502 (subd. [b]) mandate that the initial determination as to whether a claim is time-barred is for the court (Matter of Andresen é Go. v. Shepard, 45 A D 2d 578), and we have accordingly directed that a hearing be conducted to determine that threshold question. Concur— Nunez, J. P., Murphy, Steuer, Tilzer and Lane, JJ.