Opinion
April 22, 1996
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the order and judgment is reversed insofar as appealed from, on the law, the branches of the petitioners' motion which were to strike the appellant's affirmative defenses regarding the expiration of the Statute of Limitations and the petitioners' failure to serve a notice of claim upon the appellant are denied, and the proceeding to compel arbitration is dismissed, with costs.
The Supreme Court should have dismissed the petition to compel arbitration, because the underlying Statute of Limitations had expired at the time of the commencement of the proceedings ( see, Education Law § 3813 [2-b]; Matter of Smith Barney, Harris Upham Co. v. Luckie, 85 N.Y.2d 193, cert denied sub nom. Manhard v. Merrill Lynch, Pierce, Fenner Smith, ___ US ___, 116 S Ct 59).
In light of the foregoing we do not reach the parties' remaining contentions. Mangano, P.J., Balletta, Copertino and Hart, JJ., concur.