New York State Court of Appeals Case Summaries: July 8, 2008

Daily Record (Rochester, NY), Jul 8, 2008

New York State Court of Appeals

Breach of Contract

Arbitration Clause

Fiveco Inc. v. Haber

2 No. 126

Appealed from the

Appellate Division

Background: At issue in this appeal is whether an untimely petition to permanently stay arbitration, brought by the petitioner Fiveco Inc., falls under the exception to the statutory limitation period articulated in Matter of Matarasso, which allows a court to consider an untimely petition to stay arbitration when "the parties never agreed to arbitrate." Respondent Haber entered into two virtually identical installation and security agreements with Fiveco's predecessor-in-interest. The agreements covered coin- operated music and video game machines to be maintained by Haber in Mer's Pub. The parties agreed to arbitrate any dispute. In April 2002, Haber issued Fiveco a $1,000 check, which he described as a bonus. Fiveco later had the machines removed and ended the relationship. Haber served Fiveco with a demand for arbitration, alleging the payment of $1,000 extended the agreements for an additional five years.

Ruling: The case at hand does not fall within the exception. An arbitration clause in a written agreement is enforceable when it is evident the parties intended to be bound by the contract, therefore the petition is time-barred and the parties' dispute must be submitted to arbitration.

Michael T. Lamberti for the plaintiff, and Itamar J. Yeger for the respondent