IN RE: Application of SMITH BARNEY INC.

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

IN RE: Application of SMITH BARNEY INC., Petitioner-Respondent, For a Judgment, etc., v. Milton HEIMAN, Respondent-Appellant.

Decided: January 28, 1997

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, NARDELLI and MAZZARELLI, JJ. Marion S. Chan, for Petitioner-Respondent. Marc Wayne Garbar, for Respondent-Appellant.

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered June 29, 1995, which granted petitioner's application to the extent of permanently staying arbitration of any of respondent's claims based upon the acquisition of a bond purchased prior to February 20, 1989, unanimously reversed, on the law, with costs, and the petition to stay the arbitration is denied.

Since the New York choice of law provision in the parties' arbitration agreement did not explicitly provide that the agreement “and its enforcement” would be governed by New York law, and did not otherwise expressly incorporate New York arbitration law, the question of timeliness of the claims was for the arbitrators, not the court (Hamershlag Kempner & Co. v. Oestrich, 234 A.D.2d 172, 651 N.Y.S.2d 489;  see also, Matter of Smith Barney, Harris Upham v. Luckie, 85 N.Y.2d 193, 202, 623 N.Y.S.2d 800, 647 N.E.2d 1308, cert denied sub nom. Manhard v. Merrill Lynch, Pierce, Fenner & Smith, 516 U.S. 811, 116 S.Ct. 59, 133 L.Ed.2d 23;  Goldberg v. Parker, 221 A.D.2d 267, 634 N.Y.S.2d 81 lv granted sub nom. Goldberg v. Harwood, 87 N.Y.2d 806, 641 N.Y.S.2d 597, 664 N.E.2d 508).