Opinion
November 23, 1970
In this proceeding by the Town of Islip to stay a proposed arbitration of a dispute between it and appellant, an architect, arising out of a contract between them, the appeal is from an order of the Supreme Court, Suffolk County, entered June 2, 1970, which granted the petition and stayed appellant from proceeding in arbitration. Order reversed, on the law, with $10 costs and disbursements, and proceeding dismissed on the merits. The findings of fact are affirmed. The application for a stay was made on the ground that appellant had failed to comply with subdivision 3 of section 65 Town of the Town Law. That statute provides that "no action shall be maintained against a town upon or arising out of a contract entered into by the town unless the same shall be commenced within eighteen months after the cause of action thereof shall have accrued, nor unless a written verified claim shall have been filed with the town clerk within six months after the cause of action shall have accrued". In our opinion, appellant was under no duty to comply with these requirements. For the purposes of this appeal, this statute sets forth conditions precedent to actions, whereas appellant sought arbitration. We do not agree with the contention of respondent that this statute, applicable to actions, is equally applicable to arbitrations by virtue of the fact that arbitrations are considered special proceedings and CPLR 105 (subd. [b]) defines an action to include a special proceeding ( Matter of Board of Educ. of Cent. School Dist No. 2 [ Hanover Ins. Co.], 22 A.D.2d 936, affd. 16 N.Y.2d 673). CPLR 105 (subd. [a]) limits the applicability of the definitions in that section to the CPLR. Thus, the definition of an action in CPLR 105 (subd. [b]) is not controlling on the word "action" as used in the Town Law. The apparent intention of the Legislature was to exclude special proceedings from the scope of subdivision 3 of section 65 Town of the Town Law. The Legislature omitted the word "proceeding" in this subdivision but made specific reference to an "action or proceeding" in subdivision 1 of the same section. The omission of the word "proceeding" in subdivision 3 is particularly significant because the Civil Practice Act, in effect at the time of the enactment of subdivision 3, clearly distinguished between actions and proceedings. For the purposes of this appeal, we conclude that compliance with subdivision 3 of section 65 Town of the Town Law is not a prerequisite to the arbitration of a controversy with a town. Christ, P.J., Martuscello, Latham, Kleinfeld and Brennan, JJ., concur.