CROSS DEVELOPMENT INC v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA

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

CROSS DEVELOPMENT, INC., Plaintiff, v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Defendant.

Travelers Casualty and Surety Company of America, Third-Party Plaintiff-Respondent, v. Allied Fire Protection Systems, Inc., et al., Third-Party Defendants, MWT Architecture, P.C., Third-Party Defendant-Appellant.

Decided: September 22, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, AND GREEN, JJ. Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of Counsel), for Third-Party Defendant-Appellant. Ernstrom & Dreste, LLP, Rochester (Theodore M. Baum of Counsel), for Third-Party Plaintiff-Respondent.

Third-party defendant MWT Architecture, P.C. (MWT) appeals from an order denying its motion for a permanent stay of the arbitration demanded by third-party plaintiff, Travelers Casualty and Surety Company of America (Travelers).   Travelers had commenced a third-party action against MWT in January 2004, and that action was dismissed by Supreme Court in August 2004 on the ground that the agreement between Travelers' predecessor in interest and MWT provided for compulsory arbitration.   On September 20, 2004, Travelers served a demand for arbitration, resulting in the instant motion for a permanent stay of arbitration.

The claim originally asserted by Travelers in the third-party action and now asserted in the demand for arbitration accrued, if at all, upon the issuance of a certificate of occupancy for the building designed by MWT on June 15, 2001.   Thus, the demand for arbitration was served after the expiration of the three-year statute of limitations governing malpractice actions against architects (see CPLR 214[6];  Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 N.Y.3d 538, 788 N.Y.S.2d 648, 821 N.E.2d 952).   Contrary to MWT's contention, however, Supreme Court properly invoked CPLR 205(a) and denied MWT's motion to stay the arbitration as untimely commenced.   The demand was served well within the six-month extension period afforded by CPLR 205(a).   Moreover, we reject MWT's contention that CPLR 205(a) does not apply to a demand for arbitration.   Pursuant to the plain language of CPLR 7502(b), a claim sought to be arbitrated is untimely in these circumstances only if it “would have been barred by limitation of time had it been asserted in a court of the state․” Here, Travelers' claim, if asserted in “a court of the state” (id.), would have been timely commenced under the extension provisions of CPLR 205(a), and thus the demand for arbitration was timely served (cf. Matter of Oriskany Cent. School Dist. [Edmund J. Booth Architects, A.I.A.], 85 N.Y.2d 995, 997, 630 N.Y.S.2d 960, 654 N.E.2d 1208;  Marillo v. Shearson Hayden Stone, Inc., 159 A.D.2d 1012, 552 N.Y.S.2d 730).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: