Opinion
CA 03-00608.
December 31, 2003.
Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered January 29, 2003, which granted plaintiff's motion seeking to confirm an arbitration award and denied the cross motion of defendant seeking to vacate that award.
BLOCK, COLUCCI, NOTARO LAING, P.C., BUFFALO (THOMAS J. NAVARRO, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
DE MARIE SCHOENBORN, P.C., BUFFALO (JOSEPH DE MARIE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Respondent (denominated defendant) appeals from an order granting the motion of petitioner (denominated plaintiff) seeking to confirm the award of the arbitrator and denying the cross motion of respondent seeking to vacate that award. Respondent contends on appeal that its rights were prejudiced on the ground that the arbitrator failed to consider the evidence presented by respondent in support of its counterclaim, thereby exceeding his power or so imperfectly executing his power that a final and definite award was not made ( see CPLR 7511 [b] [1] [iii]). The arbitrator set forth in his decision that "a considerable amount of testimony and numerous exhibits were presented" and that respondent failed to prove its counterclaim. Respondent failed, however, to include the record of the hearing before the arbitrator in the record on appeal. Thus, the record on appeal is incomplete, and we are therefore unable to review respondent's contention. "Respondent, as the appellant, submitted this appeal on an incomplete record and must suffer the consequences" ( Matter of Santoshia L., 202 A.D.2d 1027, 1028; see Le Roi Assoc. v. Bryant, 309 A.D.2d 1144).