Summary
In Denaro v. Cruz, supra, the petitioner failed to establish that it was improper for the arbitrator to commence the hearing in his absence and the Second Department held that the petitioner's allegations regarding improprieties at the hearing after he arrived were without merit.
Summary of this case from Thompson v. ButtsOpinion
2014-03-12
In the Matter of Anthony DENARO, appellant, v. Ernest CRUZ, respondent.
Anthony Denaro, Hempstead, N.Y., appellant pro se. Lawrence Van Dyke, Roslyn Heights, N.Y., for respondent.
Anthony Denaro, Hempstead, N.Y., appellant pro se. Lawrence Van Dyke, Roslyn Heights, N.Y., for respondent.
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated March 19, 2012, directing the petitioner to refund the sum of $3,837.50 in attorney's fees to the respondent, the petitioner appeals from an order of the Supreme Court, Nassau County (McCormack, J.), dated September 14, 2012, which denied the petition.
ORDERED that the order is affirmed, with costs.
A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a “heavy burden” (Matter of Local 295–295C, IUOE v Phoenix Envtl. Servs. Corp., 21 A.D.3d 901, 901, 800 N.Y.S.2d 516;see Matter of Allstate Ins. Co. v. Valeri, 221 A.D.2d 337, 338, 633 N.Y.S.2d 1005), and must establish a ground for vacatur by clear and convincing evidence ( see Matter of Susan D. Settenbrino, P.C. v. Barroga–Hayes, 89 A.D.3d 1094, 1096, 933 N.Y.S.2d 409,cert. denied––– U.S. ––––, 133 S.Ct. 572, 184 L.Ed.2d 374).
“Partiality of an arbitrator may be shown by actual bias or the appearance of bias from which a conflict of interest may be inferred” (Matter of Mays–Carr [State Farm Ins. Co.], 43 A.D.3d 1439, 1440, 842 N.Y.S.2d 835 [internal quotation marks omitted]; see Matter of County of Niagara v. Bania, 6 A.D.3d 1223, 1225, 775 N.Y.S.2d 744). Here, the petitioner failed to establish that the arbitrator was biased ( see Matter of Mays–Carr [State Farm Ins. Co.], 43 A.D.3d at 1440, 842 N.Y.S.2d 835).
The petitioner also failed to satisfy his burden of establishing by clear and convincing evidence that the award should be overturned on the ground that he was prejudiced by a failure on the part of the arbitrator to follow proper procedure ( see CPLR 7506[c]; 7511[b][1][iv]; Matter of Mounier v. American Tr. Ins. Co., 36 A.D.3d 617, 617–618, 827 N.Y.S.2d 868). Specifically, the petitioner failed to establish that it was improper for the arbitrator to commence the hearing in his absence ( see CPLR 7506[c]; 22 NYCRR 137.6[h]; Matter of Susan D. Settenbrino, P.C. v. Barroga–Hayes, 89 A.D.3d at 1096, 933 N.Y.S.2d 409), and the petitioner's allegations regarding improprieties at the hearing after he arrived were without merit ( see Matter of Mounier v. American Tr. Ins. Co., 36 A.D.3d at 617–618, 827 N.Y.S.2d 868). ENG, P.J., BALKIN, SGROI and COHEN, JJ., concur.