MATTER OF SCM CORPORATION, 53 A.D.2d 595 [1st Dept 1976]

MATTER OF SCM CORPORATION, 53 A.D.2d 595 [1st Dept 1976] In the Matter of the Arbitration between SCM CORPORATION, Appellant, andFISHER PARK LANE COMPANY, Respondent.Appellate Division of the Supreme Court of New York, First Department. June 29, 1976 Order and judgment Supreme Court, New York County, entered on April 12, 1976, dismissing the petition herein by which appellant sought to stay arbitration with respect to the fifth defense asserted in respondent's answer in the pending arbitration proceeding, unanimously reversed, on the law and petition granted, with $40 costs and disbursements to appellant. Section 2.02 of the lease agreement between the parties provides that petitioner is to pay 17.73% of respondent's increased electricity expenses and, in accordance therewith, respondent has, since 1970, annually billed petitioner for 17.73% of increased electricity costs and has accepted, without protest, petitioner's payments of such billings. By the fifth defense in its answer, which was served about two years after petitioner had commenced arbitration and six days prior to the first preliminary hearing in the arbitration proceedings, respondent contends that the 17.73% figure should be changed to 24.98%. The fifth defense is barred by the six-year Statute of Limitations, provided for in CPLR213 (subd 1) and, in any event, is not arbitrable since it, in reality, seeks reformation.