Seneca Insurance v. Secure-Southwest Brokerage Ltd.

Appellate Division of the Supreme Court of New York

Seneca Insurance v. Secure-Southwest Brokerage Ltd.

294 A.D.2d 211, 741 N.Y.S.2d 690, 2002 N.Y. App. Div. LEXIS 5107

Appellate Division of the Supreme Court of the State of New York·Decided May 16, 2002·Published·Cited by 1 cases

Opinion

—Order, Supreme Court, New York County (Martin Shulman, J.), entered April 11, 2001, which denied the petition to compel and granted respondent’s cross motion to permanently stay arbitration, unanimously affirmed, with costs.

[212] Supreme Court properly rejected petitioner’s argument that the cross motion was untimely pursuant to CPLR 7503 (c), since respondent’s objection was that there was no agreement to arbitrate (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264). Also properly rejected was its argument that respondent had failed to answer or submit an affidavit from an individual with personal knowledge of the facts, since the cross motion was in the nature of an objection in point of law (see, CPLR 404 [a]). Furthermore, in light of the overall language of the agreement containing the arbitration provision and the absence of a signature to the agreement on behalf of petitioner, Supreme Court properly found that petitioner had failed to carry its burden of affirmatively establishing that petitioner had agreed to arbitrate (see, Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6).

We have considered petitioner’s other arguments and find them unavailing. Concur—Buckley, J.P., Sullivan, Lerner and Friedman, JJ.

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—Order, Supreme Court, New York County (Martin Shulman, J.), entered April 11, 2001, which denied the petition to compel and granted respondent’s cross motion to permanently stay arbitration, unanimously affirmed, with costs.

[212] Supreme Court properly rejected petitioner’s argument that the cross motion was untimely pursuant to CPLR 7503 (c), since respondent’s objection was that there was no agreement to arbitrate (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264). Also properly rejected was its argument that respondent had failed to answer or submit an affidavit from an individual with personal knowledge of the facts, since the cross motion was in the nature of an objection in point of law (see, CPLR 404 [a]). Furthermore, in light of the overall language of the agreement containing the arbitration provision and the absence of a signature to the agreement on behalf of petitioner, Supreme Court properly found that petitioner had failed to carry its burden of affirmatively establishing that petitioner had agreed to arbitrate (see, Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6).

We have considered petitioner’s other arguments and find them unavailing. Concur—Buckley, J.P., Sullivan, Lerner and Friedman, JJ.

Seneca Insurance v. Secure-Southwest Brokerage Ltd., 294 A.D.2d 211, 741 N.Y.S.2d 690, 2002 N.Y. App. Div. LEXIS 5107 (N.Y. Ct. App. 2002).

Pincite

294 A.D.2d 211 (Seneca Insurance v. Secure-Southwest Brokerage Ltd.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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