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COSMOPOLITAN MUTUAL INSURANCE COMPANY v. DANIEL MOLIERE (03/31/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


March 31, 1969

COSMOPOLITAN MUTUAL INSURANCE COMPANY, RESPONDENT,
v.
DANIEL MOLIERE, APPELLANT

Concur -- Stevens, P. J., Eager, Capozzoli, McGivern and Nunez, JJ.

The demand for arbitration was served by appellant upon petitioner insurance company on April 4, 1968. It was received by the insurance company on April 5, 1968. The demand was based upon appellant's insurance policy protecting him in situations involving uninsured motorists. The notice contained the additional provision under CPLR 7503 (subd. [c]) that "unless the party served applies to stay the arbitration within ten days after such service the said party shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time." Petitioner insurance company did not serve its motion papers requesting a stay of arbitration until April 16, 1968 as is clearly disclosed by the postmark date affixed on the envelope of petitioner's own post office meter. Petitioner argues that the three-day extension provided by CPLR 2103 (subd. [b], par. 2) is available to it. The provisions of CPLR 2103 apply only to pending actions and proceedings and not to a notice of intention to arbitrate which itself initiates the proceeding. "The ten-day period in which a motion for a stay must be made is not extended, it has been held, if the motion papers are served by mail. CPLR 2103 which provides for an additional three days applies only when an action or special proceeding is pending." [Citing Matter of Beverly Cocktail Lounge (Emerald Vending Mach.), 45 Misc. 2d 376.] 8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7502.04. We have heretofore held in analogous situations that the 10-day limitation contained in CPLR 7503 (subd. [c]) is not extended by CPLR 2103. (See Matter of New York City Housing Auth. [ Raisler Corp.], N. Y. L. J., Sept. 20, 1966, p. 16, cols. 4-5, affd. 27 A.D.2d 802; Matter of Ingram-Richardson Mfg. Co. [ General Bronze Corp.], 28 A.D.2d 1093; Matter of Aetna Ins. Co. [ Mascia ], 29 A.D.2d 845.)

Disposition

Order entered July 22, 1968 granting a stay in arbitration pending trial of the special proceeding on the preliminary issue of disclaimer is reversed, on the law, with $30 costs and disbursements, and stay of arbitration denied.

19690331

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