87 A.D.2d 524 | N.Y. App. Div. | 1982
Order and judgment (one paper), Supreme Court, New York County (Taylor, J.), entered March 24, 1981, is unanimously modified, on the law, to the extent that petitioner’s application for a stay of arbitration is 'granted as to all claims with respect to goods as to which tender of delivery was made before April 9, 1976, and respondent’s motion to compel arbitration is denied as to such claims, and the order and judgment are otherwise affirmed, without costs. Petitioner objects that notice of defects was not timely served as required by section 2-607 (subd [3], par [a]) of the Uniform Commercial Code and the provisions of the standard cotton textile salesnote. This objection raises questions for the arbitrators. But it is not a ground on which the court can stay arbitration, as such notice is not expressly made a condition precedent to the institution of the arbitration proceeding and this case involves a “broad arbitration clause”. (Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, 364.) However, CPLR 7502 (subd [b]) provides: “If, at the time that a demand for arbitration was made or a notice of intention to arbitrate was served, the claim sought to be arbitrated would have been barred by limitation of time had it been asserted in a court of the state, a party may assert the limitation as a bar to the arbitration on an application to the court as provided in section 7503 or subdivision (b) of section 7511.” The present is “an application to the court as provided in section 7503”. In our view, insofar as the claim relates to goods tendered for delivery before April 9,1976, “the claim sought to be arbitrated would have been barred by limitation of time had it