Auto One Insurance v. Lopez

CPLR 7503 (c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate (see Matter of Fiveco, Inc. v Haber, 11 NY3d 140, 144 [2008]). “[T]he timeliness of a proceeding for a stay of arbitration is measured with respect to the earlier filing of the petition, not with respect to its later service” (Matter of Government Empls. Ins. Co. v Morris, 83 AD3d 709, 710 [2011]; see CPLR 304, 7502 [a]; Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745 [2002]; Matter of Scott v Allstate Ins. Co., 45 AD3d 690 [2007]; Matter of Allstate Indem. Co. v Martinez, 4 AD3d 422 [2004]). Here, it uncontested that the appellants served their notice of intention to arbitrate on April 20, *7022010. The petitioner submitted proof that the instant proceeding was commenced on May 3, 2010, by the filing of a petition. Accordingly, contrary to the appellants’ contention, the action was commenced within the 20-day limitation period, and thus was timely.

The appellants’ remaining contentions are either improperly raised for the first time on appeal (see Jara v New York Racing Assn., Inc., 85 AD3d 1121 [2011]; Panteleon v Amaya, 85 AD3d 993 [2011]), or without merit. Angiolillo, J.E, Hall, Cohen and Miller, JJ., concur.