Sierra USA Communications, Inc. v. International Telephone & Satellite Corp.

14 Misc. 3d 528
CourtNew York Supreme Court
DecidedNovember 24, 2006
StatusPublished

This text of 14 Misc. 3d 528 (Sierra USA Communications, Inc. v. International Telephone & Satellite Corp.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sierra USA Communications, Inc. v. International Telephone & Satellite Corp., 14 Misc. 3d 528 (N.Y. Super. Ct. 2006).

Opinion

OPINION OF THE COURT

Bernard J. Fried, J.

At issue is whether newly amended CPLR 7502 (c),1 when read together with CPLR 2004,2 allows me the discretion to extend the 30-day time period for commencing arbitration, in order to prevent the expiration of provisional relief pursuant to CPLR 7502 (c), after the 30-day time period has expired.

On July 19, 2006, petitioner, Sierra USA Communications, Inc., sought a temporary restraining order (TRO) freezing respondent’s International Telephone & Satellite Corp. (IT&S or respondent), assets until an attachment could be granted, so that a soon to be commenced arbitration against IT&S would not be rendered ineffectual (sequence No. 001).3

On July 21, I granted the TRO. On August 22, 2006, IT&S moved (sequence No. 002) to vacate the TRO on the grounds [530]*530that, under CPLR 7502 (c), Sierra was required to commence arbitration within 30 days of the granting of the TRO, and that since Sierra did not commence the arbitration until August 24 (34 days after the TRO was granted) I was powerless to extend the 30-day time limit, and the provisional relief was, therefore, no longer effective. Sierra concedes that it commenced arbitration after 30 days had passed; however, it argues that section 7502 (c), read together with section 2004, permitted extension of the 30-day time period, even after it had expired, upon a finding of good cause. Thus, Sierra has requested that the 30-day deadline under section 7502 (c) be extended.

Section 7502 (c), which regulates applications for provisional remedies ancillary to arbitration proceedings, authorizes an order of attachment or a preliminary injunction4 pursuant to an arbitrable controversy. Such relief can be granted where, absent such provisional relief, the award to which the applicant may be entitled could be rendered ineffectual. (See, e.g., Matter of H.I.G. Capital Mgt. v Ligator, 233 AD2d 270, 271 [1st Dept 1996].)

Prior to 2005, CPLR 7502 (c) provided that if provisional relief was granted before the commencement of arbitration, the time in which arbitration had to be commenced was to be determined in accordance with CPLR articles 62 and 63. In the case of attachment, section 7502 (c) incorporated the 60-day deadline to commence arbitration under CPLR 6213, which required that an “application for extension [be] made before the expiration of the [60-day deadline].”5

[531]*531In 2005, section 7502 (c) was amended to expressly provide that provisional relief is available regardless of whether the arbitration is conducted inside or outside of New York State, and therefore applies to all arbitrations. (See petitioner’s brief, exhibit B [2005 Report of Advisory Comm on Civ Prac, reprinted in 2005 McKinney’s Session Laws of NY, at 2605-2606].) The 2005 amendment also changed the deadline to commence arbitration once provisional relief was granted, from 60 days pursuant to section 6213, to 30 days as expressly provided in the amended text of section 7502 (c). Under the amended section 7502 (c), if arbitration is not commenced within 30 days, the order granting provisional relief “shall expire and be null and void.” Additionally, the court issuing the provisional remedy has discretion to reduce or expand the 30-day time period for good cause shown. It is unclear, on the face of section 7502 (c), whether the 30-day deadline may be extended after it has expired. Furthermore, there appears to be no case law regarding discretion to extend the time period under section 7502 (c), either before or after the 2005 amendment. Thus, it is necessary to turn first to section 2004, which governs extension of time generally. Under section 2004 courts have discretion to extend the time fixed by “any statute,” upon a showing of good cause, “whether the application for extension is made before or after the expiration of the time fixed” (Emphasis added; see also, 49-50 Assoc. v Free-Tan Corp., 248 AD2d 128 [1st Dept 1998] [CPLR 2004 permitted extension of the time to file note of issue, even though the express 90-day deadline under CPLR 3216 had expired, since plaintiff demonstrated reasonable excuse].)

There are three exceptions to the exercise of discretion to extend a deadline under section 2004. The first is where another law or statute provides that a deadline cannot be extended as expressly stated in the relevant section. (“Except where otherwise expressly prescribed by law, the court may extend” [emphasis added].) For example, in Matter of Sakow (97 NY2d 436 [2002]), the Court of Appeals has held that a notice of pendency could not be extended once its three-year time limit had elapsed, since CPLR 6513 explicitly provides that an exten[532]*532sion can only be granted if applied for before expiration.6 Unlike section 6513, section 7502 (c) does not expressly provide that the 30-day deadline cannot be extended after such period has elapsed. Rather, it grants discretion to extend the time limit without any reference as to when such discretion must be exercised. Such language can hardly be characterized as prescribing extension after expiration.

The second is that a statute of limitations may not be extended, since CPLR 201 provides “No court shall extend the time limited by law for the commencement of an action.” (See, e.g., Dorst v Eggers Partnership, 265 AD2d 294 [2d Dept 1999].) Since CPLR 7502 (c) is not a statute of limitations, there is no limitation. If the 30-day limit expires under section 7502 (c), and is not extended, the applicant merely loses her right to provisional relief. Nothing in section 7502 (c) prohibits an applicant from commencing arbitration or any action for that matter, once the time limit has expired.

Finally, there is no discretion, even under section 2004, to extend the time in which to file an appeal, since CPLR 5514 (c) expressly provides that “[n]o extension of time shall be granted for taking an appeal or for moving for permission to appeal except as provided in this section, section 1022, or section 5520.”

Thus it seems conclusive that the exceptions are inapplicable and that there is discretion to extend the 30-day time limit under section 7502 (c), upon a showing of good cause, allowing Sierra to commence arbitration while the TRO remains in effect. However, IT&S advances three arguments against such discretion.

IT&S first argues that section 2004 does not apply to provisional remedies, because provisional remedies are drastic in that they operate to limit or restrict a party’s property rights until a final adjudication of the merits, and, as such, must be strictly construed. (See, e.g., Northern Blvd. & 80th St. Corp. v Siegel, 16 AD2d 523, 523-524 [1st Dept 1962].) However, this general observation does not preclude application of CPLR 2004 to provisional remedies. Indeed, the First Department recognized that there is discretion to extend the time limit on a provisional remedy under section 2004:

“The Legislature clearly intended that attachment [533]*533should be expeditiously pursued and, when it provided that a levy shall become void after 90 days upon failure to proceed (CPLR 6214 [e]), it can hardly be said to have contemplated proceedings extending over a period of years, notwithstanding statutory acknowledgement of the courts’ discretion to enlarge the time limit

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Related

In Re the Estate of Sakow
767 N.E.2d 666 (New York Court of Appeals, 2002)
Northern Blvd. & Street Corp. v. Siegel
16 A.D.2d 523 (Appellate Division of the Supreme Court of New York, 1962)
Posadas De Puerto Rico, Inc. v. Gruberman
226 A.D.2d 249 (Appellate Division of the Supreme Court of New York, 1996)
H. I. G. Capital Management, Inc. v. Ligator
233 A.D.2d 270 (Appellate Division of the Supreme Court of New York, 1996)
49-50 Associates v. Free-Tan Corp.
248 A.D.2d 128 (Appellate Division of the Supreme Court of New York, 1998)
Dorst v. Eggers Partnership
265 A.D.2d 294 (Appellate Division of the Supreme Court of New York, 1999)
CanWest Global Communications Corp. v. Mirkaei Tikshoret Ltd.
9 Misc. 3d 845 (New York Supreme Court, 2005)
Kalman v. Neuman
102 Misc. 2d 662 (New York Supreme Court, 1980)
Mulder v. A.S. Goldman & Co.
183 Misc. 2d 505 (New York Supreme Court, 1999)

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Bluebook (online)
14 Misc. 3d 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sierra-usa-communications-inc-v-international-telephone-satellite-nysupct-2006.