Opinion
October 22, 1998
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
Concerning the application to vacate the award, we held on a previous appeal involving the same parties and the same agreement "that a valid agreement to arbitrate exists between the parties" ( Matter of Port Auth. v. Office of Contract Arbitrator, 241 A.D.2d 353, 354). That holding collaterally estops petitioner from invoking Matter of Matarasso (Continental Cas. Co.) ( 56 N.Y.2d 264) in an effort to avoid the CPLR 7503 (c) 20-day time limit for challenging the arbitrability of the particular disputes resolved in the award ( see generally, Rochester City School Dist. v. Rochester Teachers Assn., 41 N.Y.2d 578, 582-583). Nor does it avail petitioner to argue that the arbitrator exceeded his power by proceeding with the arbitration at a time when the IAS Court's order staying the prior arbitration was not yet reversed, it being settled that questions of claim preclusion are for the arbitrator ( see, Matter of Port Auth. v. Port Auth. Police Sergeants Benevolent Assn., 225 A.D.2d 503, citing Board of Educ. v. Patchogue-Medford Congress of Teachers, 48 N.Y.2d 812). Also without merit is petitioner's contention that the award should be vacated based upon newly discovered evidence that the agreement was terminated before the arbitration was demanded, it being settled that newly discovered evidence is not a ground for challenging an arbitration award ( Matter of Migdal Plumbing Heating Corp. [Dakar Developers], 232 A.D.2d 62, 64, lv denied 91 N.Y.2d 808), and that the issue of whether an arbitration agreement has been terminated is for the arbitrator ( Matter of Cassone, 63 N.Y.2d 756, 758-759). Concerning petitioner's application to stay the third arbitration instituted by respondent, it was properly denied for the same reasons as the first ( Matter of Port Auth. v. Office of Contract Arbitrator, 241 A.D.2d 353, supra).
Concur — Sullivan, J. P., Rosenberger, Wallach and Mazzarelli, JJ.