Opinion
373N
March 18, 2003.
Order, Supreme Court, New York County (Harold Tompkins, J.), entered October 2, 2002, which dismissed the petition brought pursuant to CPLR article 75 to stay arbitration, and directed the parties to proceed to arbitration, unanimously affirmed, without costs.
Joseph J. Schiavone, for petitioner-appellant.
Kathryn P. Broderick, for respondent-respondent.
Before: Buckley, P.J., Mazzarelli, Sullivan, Ellerin, Lerner, JJ.
The Federal Arbitration Act, which the parties agree governs enforcement of their arbitration agreement, requires rigorous adherence to the agreement's plain terms (see Matter of Salvano v. Merrill, Lynch, Pierce, Fenner Smith, 85 N.Y.2d 173, 181-182). Accordingly, where the agreement's unambiguous language requires a certain action by a certain time, enforcement of that deadline may not be avoided by citing the absence of an explicit stipulation that time is of the essence (see Universal Reinsurance Corp. v. Allstate Ins. Co., 16 F.3d 125, 128). It is undisputed that petitioner did not communicate its choice of arbitrator to respondent until after the stipulated deadline (see Newton v. Booras, 73 A.D.2d 593, 594, affd 50 N.Y.2d 967; cf., Matter of Maizuru Shipbuilding Eng'g Co., 26 A.D.2d 541, 542). Since the phrase "fail to choose" is not ambiguous, and since the requirement of making a choice necessarily includes an implicit requirement that the choice be communicated (see Matter of Evanston Ins. Co. v. Gerling Global Reinsurance Corp.-U.S. Branch, 1990 U.S. Dist LEXIS 12521, 4*-5* [N.D. Ill. Sept. 21, 1990]), we conclude that petitioner failed to choose an arbitrator by the deadline (cf., Matter of Argonaut Midwest Ins. Co. v. Gen. Reinsurance Corp., 1998 U.S. Dist LEXIS 12497 [N.D. Ill. July 31, 1998]), entitling respondent to make the choice under the terms of the arbitration agreement. We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.