Opinion
2003-01991.
Decided March 22, 2004.
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Vaughan, J.), dated June 17, 2002, which denied the petition, confirmed the award, and dismissed the proceeding.
Barry, McTiernan Moore, New York, N.Y. (Anthony J. McNulty of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order and judgment is affirmed, with costs.
Pursuant to CPLR 7511(a), an application to vacate an arbitrator's award must be made "by a party within ninety days after [its] delivery to [that party]." Here, the documentary evidence submitted in support of the petitioner's application established that the petitioner received the arbitrator's decision no later than November 9, 2001. Since this proceeding was commenced more than 90 days thereafter, the Supreme Court properly dismissed it as untimely ( see Werner Enters. Co. v. New York City Law Dept., 281 A.D.2d 253; Matter of National School Bus Serv., 267 A.D.2d 995; Matter of State Farm Mut. Ins. Co. v. Elias, 221 A.D.2d 547; Lopez v. Coughlin, 220 A.D.2d 349).
Contrary to the petitioner's contentions, the fact that the arbitrator's decision was served on the petitioner by mail did not extend its time to commence this proceeding by five days ( see Matter of Fiedelman v. New York State Dept. of Health, supra; Matter of ATM One v. Lanaverde, 307 A.D.2d 922), as the provision of CPLR 2103 extending time for service made by mail "is expressly restricted to service 'in a pending action'" ( Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80, 82).
The petitioner's remaining contentions are without merit.
FLORIO, J.P., KRAUSMAN, SCHMIDT and TOWNES, JJ., concur.