Opinion
2001-02423
Argued May 2, 2002.
September 24, 2002.
In two related proceedings to confirm an arbitration award, Nationwide Associates, Inc., and Barry Richter appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated February 16, 2001, which granted the petitioners' motion to confirm the report of a Judicial Hearing Officer (Sacks, J.H.O.), finding that service of process was proper, denied their cross motion to reject the report, and granted the petitions.
Andrew C. Morganstern, Mineola, N.Y., for appellants.
Howard M. File, P.C., Staten Island, N.Y. (John Z. Marangos of counsel), for petitioners-respondents in Proceeding No. 1 and respondents in Proceeding No. 2.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, the report of the Judicial Hearing Officer is rejected, the petitions are denied, and the proceedings are dismissed.
Following an arbitration wherein an award was rendered in favor of the petitioners, G.J. DiBenedetto, M.D., P.C., Retirement Trust (hereinafter DiBenedetto), Targee St., Internal Medicine Group, P.C. (hereinafter Targee), and Parisi Enterprises, Inc., Profit Sharing Trust (hereinafter Parisi), DiBenedetto and Targee commenced Proceeding No. 1 and Parisi commenced Proceeding No. 2 to confirm the award. In both proceedings, Nationwide Associates, Inc. (hereinafter Nationwide), and Barry Richter cross-moved to dismiss the petitions on the ground that, among other things, service of process was improper. The Supreme Court then referred the proceedings to a Judicial Hearing Officer (hereinafter the J.H.O.) for a hearing on the issue of service, and, after the hearing, the J.H.O. sustained service in both proceedings.
Following the issuance of the J.H.O.'s report, DiBenedetto, Targee, and Parisi moved to confirm the report as well as the arbitration award. Nationwide and Richter cross-moved to reject the report. Although no transcript of the hearing on the issue of service was filed, the Supreme Court, inter alia, confirmed the report.
The notice of petition and the affidavits of service in Proceeding No. 1 clearly demonstrate that the notice of petition did not include the proper amended return date and therefore was jurisdictionally defective (see Matter of Hawkins v. McCall, 278 A.D.2d 638; Matter of Civil Serv. Employees Assn. Local No. 1000 AFSCME, AFL-CLO v. Albrecht, 180 A.D.2d 183). Accordingly, Proceeding No. 1 must be dismissed for lack of jurisdiction.
Proceeding No. 2 must be dismissed as well. Arbitration is a contractual right which may be waived (see Sherrill v. Grayco Bldrs., 64 N.Y.2d 261; Matter of Hawthorne Dev. Assocs. v. Gribin, 128 A.D.2d 874). Here, Parisi chose to pursue and litigate these claims in a Federal court. The issues were adjudicated in that forum, and a stipulation of settlement was entered into by the parties. Therefore, the arbitrator should have applied the doctrine of res judicata to this proceeding and should not have conducted an arbitration (see Matter of Reed v. Cohen, 120 A.D.2d 598; East Ramapo Cent. School Dist. v. East Ramapo Teachers Assn., 91 A.D.2d 969). Accordingly, the arbitrator exceeded his authority (see CPLR 7511[b][1][iii]).
SANTUCCI, J.P., FLORIO, GOLDSTEIN and TOWNES, JJ., concur.