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IN THE MATTER OF LAND OF THE FREE, INC., D/B/A SEAFORD PALACE DINER ET AL., APPELLANTS, v. UNIQUE SANITATION, INC., ET AL., RESPONDENTS.

93 N.Y.2d 942 (1999).
June 3, 1999

2 No. 101

[99 NY Int. 0088]
Decided June 3, 1999


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Andrew Paul Cooper, for appellants.
Peter A. Bee, for respondents.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a demand for arbitration. An untimely application to stay arbitration may, however, be granted if the agreement for which arbitration is sought is facially illegal or if upon facial examination of the agreement, a court may conclude that it would be against public policy to permit arbitration of the issue sought to be arbitrated ( see, Matter of Sprinzen v Nomberg, 46 NY2d 623, 631; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621).

Here, the trash removal contract between the parties is not facially illegal nor may it be concluded from the face of the contract that it would be against public policy to arbitrate the issue for which arbitration was sought. Accordingly, the Appellate Division correctly determined that the arbitration should proceed, inasmuch as the petitioner–appellant's application to stay arbitration was made after expiration of the 20–day time limit set forth in CPLR 7503.

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Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Decided June 3, 1999