arbitrate any disputes. DCC does not seek to vacate the Award on the grounds set forth in § 10 of the FAA. To the contrary, DCC argues that the Award does not apply to it and cannot be confirmed or enforced as against it because DCC never agreed to arbitrate. Section 12 does not apply in these circumstances. See Getty Oil Co. v. Norse Management Co., 711 F. Supp. 175, 176 (S.D.N.Y. 1989). In Getty Oil, the petitioner sought confirmation of an arbitration award, and the court held that the other party to the arbitration agreement was barred under Florasynth from challenging the award because the time in which to file a motion to vacate under § 12 had expired. However, the court permitted the party's agent, who had executed the arbitration agreement on behalf of its principal, to argue that, as the agent of a disclosed principal, it was not liable under the agreement. Similarly, DCC can raise its defense that it did not enter into any agreement to arbitrate, although the G-L Center might be barred from challenging the Award at this point in time.
Even if DCC's argument did constitute a defense to which § 12 of the FAA might apply, the statute is inapplicable in this case, which is brought under § 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185. The Second Circuit has held that the statute of limitations applicable to a motion to vacate an arbitration award in a suit under § 301 of the LMRA is borrowed from state law. Harry Hoffman Printing, Inc. v. Graphic Communications, Int'l Union, Local 261, 912 F.2d 608, 612 (2d Cir. 1990); see also Burns Int'l Security Servs. v. International Union, United Plant Guard Workers of America, 47 F.3d 14, 16 (2d Cir. 1994) (actions under § 301 borrow state statute of limitations). Therefore Florasynth, which did not involve the LMRA, does not govern here. In Harry Hoffman Printing, a case arising under the LMRA, the court applied New York C.P.L.R. § 7511, which states that "an application to vacate or modify an award may be made by a party within ninety days after its delivery to him." C.P.L.R. § 7511(a). Indeed, the Union recognizes in its reply brief that, under Harry Hoffman Printing, C.P.L.R. § 7511 applies to actions under § 301 of the LMRA, but neither party discusses the applicability of § 7511 to this action -- which, according to the Verified Petition, is brought pursuant to the LMRA and the FAA.
Although the ninety day limitations period of § 7511(a) is nearly the same as the FAA's three month limit, and it is undisputed that both time limits have passed, the distinction is important. Unlike the FAA's statute of limitations as construed by Florasynth, § 7511(a) does not prevent DCC from raising defenses to this petition to confirm. As the New York cases that have addressed the issue make clear, C.P.L.R. § 7511(a) only applies to motions to vacate or modify arbitration awards. It does not apply to objections or defenses to a petition to confirm. See, e.g., Vilceus v. North River Ins. Co., 150 A.D.2d 769, 769, 542 N.Y.S.2d 26, 27 (2d Dep't 1989); Sutorius v. Hanover Ins. Co., 166 Misc. 2d 465, 467-468, 633 N.Y.S.2d 923, 925 (Supplemental. Ct. Suffolk County 1995), aff'd, 233 A.D.2d 332, 649 N.Y.S.2d 183 (1996); see also McLaughlin, Practice Commentaries, McKinney's Cons. Laws of New York, Book 7B, CPLR C7511:1, at 578-579 (1980) (aggrieved party has only ninety days to move to vacate, but may simply omit the motion and wait until the victor moves to confirm the award before raising grounds to vacate). In fact, the Second Circuit recognized this difference between § 7511 and the FAA in Florasynth, when it stated that "New York law permits a party to oppose a motion to confirm with a motion to vacate even after three months have passed." 750 F.2d at 175. And, other cases arising under the LMRA have applied § 7511 and permitted respondents to raise defenses in petitions to confirm arbitration awards, despite the expiration of the limitations period for a motion to vacate. In Bevona v. Puretz, 1992 U.S. Dist. LEXIS 3133, 1992 WL 50936, at *4 (S.D.N.Y. 1992), for example, the court applied C.P.L.R. § 7511 rather than § 12 of the FAA in an action under the LMRA to confirm an arbitration award, holding that the respondent was not barred from seeking to vacate the award despite the expiration of the limitations period. See also International Ass'n of Heat and Frost Insulators, Local No. 12 v. Insulation Quality Enters., Ltd., 675 F. Supp. 1398, 1404 (E.D.N.Y. 1988) (applying § 7511 in action to confirm arbitration award brought under LMRA and FAA).
Since C.P.L.R. § 7511 rather than § 12 of the FAA applies in this case, DCC is not time barred from asserting its defenses in opposition to the petition to confirm.
For the foregoing reasons, the Union's petition for confirmation and enforcement of the Award as against DCC is denied.
Dated: New York, New York
January 27, 1998
MIRIAM GOLDMAN CEDARBAUM
United States District Judge