ROCHELLE FABRICS LTD v. TOP KID INC

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Supreme Court, Appellate Division, First Department, New York.

ROCHELLE FABRICS LTD., Petitioner-Appellant, v. TOP KID'S, INC., Respondent-Respondent.

Decided: February 05, 1998

Before NARDELLI, J.P., and WALLACH, WILLIAMS and MAZZARELLI, JJ. Brett J. Meyer, for Petitioner-Appellant. Thomas M. Gandolfo, for Respondent-Respondent.

Order, Supreme Court, New York County (William Davis, J.), entered April 30, 1997, which denied petitioner seller's application to compel arbitration, and granted respondent buyer's cross motion to dismiss the petition, unanimously affirmed, without costs.

 The petition was properly dismissed on the ground that there was no agreement to arbitrate.   Petitioner's contract, never signed by respondent, containing the arbitration clause, was issued in response to purchase orders issued by respondent that specifically excluded arbitration (Alex Colman Inc. v. Silverman Prods. & Textiles, 212 A.D.2d 452, 622 N.Y.S.2d 729).   Nor, absent an agreement to arbitrate, is there merit to petitioner's argument that respondent's failure to seek a stay of arbitration within the 20-day time limit of CPLR 7503(c) bars it from challenging the demand for arbitration (id.).

MEMORANDUM DECISION.