Weight Watchers International, Inc. v. Mark

263 A.D.2d 491, 691 N.Y.S.2d 918, 1999 N.Y. App. Div. LEXIS 7887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the appeal is from an order of the Supreme Court, Nassau County (Alpert, J.), dated July 29, 1998, which granted the petition and permanently stayed arbitration.

Ordered that the order is affirmed, with costs.

The Supreme Court properly determined that the subject arbitration was barred by the expiration of the six-year Statute of Limitations governing breach of contract claims and properly declined to send the issue of the statutory time limitation to the arbitrator for a determination (see, CPLR 7502 [b]; 7503 [b]; Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193). In addition, the Supreme Court properly determined that the assertions of fraudulent concealment with respect to the breach of contract claim did not serve to extend the Statute of Limitations (see, Cabrini Med. Ctr. v Desina, 64 NY2d 1059, 1061; Matter of Nassau Suffolk Radiological Assocs. v Tugendhaft, 236 AD2d 411; Tomkins PLC v Bangor Punta Consol. Corp., 194 AD2d 493, 494; Matter of Thaler v Skydell, 150 AD2d 261).

The appellant’s remaining contentions either lack merit or are improperly raised for the first time on appeal. Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.