The purpose of the statute was to apply the Statute of Limitations referable to the substantive issue to arbitration proceedings, and to permit it to lie as a bar to the arbitration proceeding (see N Y Legis Annual, 1959, p 12). As was stated in Matter of Cohen ( 17 A.D.2d 279, 282): "Section 1458-a [the predecessor to CPLR 7502 (subd [b])] was proposed upon the basis that 'The same considerations of public policy which make stale claims in actions at law unenforceable also apply to disputes in arbitration.' Specifically, it was enacted to eliminate the confusion theretofore existing in the decisions as to whether a proceeding in court could be invoked to enforce the defense of the Statute of Limitations or whether the applicability of the defense was in the sole discretion of the arbitrators.
The purpose of the statute was to apply the Statute of Limitations referable to the substantive issue to arbitration proceedings, and to permit it to lie as a bar to the arbitration proceeding (see N Y Legis Annual, 1959, p 12). As was stated in Matter of Cohen ( 17 A.D.2d 279, 282): 'Section 1458-a [the predecessor to CPLR 7502 (subd. [b]) was proposed upon the basis that "The same considerations of public policy which make stale claims in actions at law unenforceable also apply to disputes in arbitration." Specifically, it was enacted to eliminate the confusion theretofore existing in the decisions as to whether a proceeding in court could be invoked to enforce the defense of the Statute of Limitations or whether the applicability of the defense was in the sole discretion of the arbitrators.
First, where the parties have contracted to submit all disputes or controversies to arbitration, either party may compel arbitration simply by submitting a unilateral "demand for arbitration," relying on the broad-based agreement to arbitrate as the sole source of arbitral authority. See, e.g., N.Y.Civ.Prac.L. R. § 7503(c) (1993); Cohen v. Cohen, 17 A.D.2d 279, 233 N.Y.S.2d 787, 791 (1962) (describing arbitration proceedings which may be commenced on unilateral "demand"). Second, even where the contract either includes no arbitration clause or excludes particular kinds of "claims" from arbitration, the contracting parties later may agree in writing to arbitrate any or all such otherwise nonarbitrable claims ("uncovered claims"), simply by entering into a joint arbitral "submission."
But ACMAT has not refuted the unions' assertion that "the defendants, together with the plaintiff, participated under [the Impartial Board's] rules for determining the work assignment." When the dispute arose, the parties may have mistakenly believed that they were already bound to submit it to the Impartial Board; it matters only that they then agreed to be bound. Hellenic Lines, Ltd. v. Louis Dreyfus Corp., 372 F.2d 753, 758 (2d Cir. 1967); Ficek v. Southern Pacific Co., 338 F.2d 655, 656 (9th Cir. 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965); Cohen v. Cohen, 17 A.D.2d 279, 283, 233 N.Y.S.2d 787, 791 (1962). Letter from Bryan H. Marsh, Vice President, to William J. Cour, Chairman, Impartial Jurisdictional Disputes Board, August 29, 1974, at 2; see also Plaintiff's Answers to Interrogatories of Defendants Other Than International Association of Iron Workers, no. 7, at 4.
In view of the statute it would be an interesting question, by no means clear, if the agreement to arbitrate specifically gave to the arbitrators the power to decide in the first instance on limitations, whether this would in any way affect the statute. The oft-cited, and frequently miscited, Matter of Cohen ( 17 A.D.2d 279) is not to the contrary. In that case the parties were engaged in a lawsuit.
While the court found that the respondent had not waived its right to seek a stay, it relied on the former statutory provision in effect at the time, Civil Practice Act 1458-a which, in contrast to CPLR 7503(b), does not prohibit a party who had earlier moved to compel arbitration from thereafter moving to stay it. ( See Matter of Cohen, 17 AD2d 279 [1st Dept 1962], mod 28 AD2d 1099 [quoting text of Civil Practice Act 1458-a]). SCM Corp. v Fisher Park Lane Co., 40 NY2d 788 (1976), is not on point as there, no motion to compel arbitration had been made.
Where, as here, an arbitration agreement provides for the arbitration of future controversies, and where, as here, it contains a choice of law provision, stating that New York law will govern both the agreement and its enforcement, the issue of whether a claim sought to be arbitrated is timely is governed by CPLR 7502 (b), and it is a threshold issue that is to be decided by a court. Matter of Diamond Waterproofing Svs. Inc. v 55 Liberty Owners Corp., 4 NY3d 247 (2005); Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193, cert denied sub nom Manhard v Merrill Lynch, Pierce, Fenner & Smith, 516 US 811 (1995); Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d. 39 (1st Dept 2003); see also Matter of Cohen [Cohen], 17 AD2d 279 (1st Dept 1962), mod on other grounds, 28 AD2d 1099 (1st Dept 1967).
(Italics supplied.) A proceeding for arbitration of future disputes which is authorized by the prior agreement of the parties may be instituted by the giving of a "notice of intention to arbitrate" or the making of a "demand for arbitration" ( Matter of Cohen v. Cohen, 17 A.D.2d 279, 282-283). In the opinion of the court, the filing of a notice of intention to make claim against the MVAIC is the equivalent of the giving of a "notice of intention to arbitrate" since arbitration of all such claims against the MVAIC is made compulsory by statute (Insurance Law, § 167, subd. 2-a; § 606, subd. [b]).