In re the Arbitration between Aaacon Auto Transport, Inc. & Aluminum Products Distributors, Inc.

Order, Supreme Court, New York County, entered June 27, 1977 denying petitioner’s motion for an order to punish respondents Aluminum Products Distributors, Inc., and the Fidelity and Casualty Company of New York for contempt and also modifying order, Supreme Court, New York County, dated April 15, 1975 by striking therefrom the provisions staying respondents, Aluminum Distributors, Inc., and the Fidelity and Casualty Company of New York, from proceeding with actions instituted by said respondents in the State as well as Federal courts in the State of Oklahoma, unanimously affirmed, with $40 costs and disbursements of this appeal payable by appellant to respondents. In so affirming, however, we modify a finding of fact reached at Special Term (CPLR 5712, subd [b]). The court found that respondent Aluminum had not timely objected to petitioner’s notice of intention to arbitrate. The record discloses that said notice was mailed by petitioner on July 25, 1974 and received by respondents on July 26, 1974. Respondent’s application, made on August 15, 1974, to stay arbitration (CPLR 7503, subd [b]) was therefore timely. (Monarch Ins. Co. v *929 Pollack, 32 AD2d 819 .) Concur—Lupiano, J. P., Birns, Silverman, Fein and Sullivan, JJ.