Opinion
2007-186 N C.
Decided on March 12, 2009.
Appeal from an order of the District Court of Nassau County, First District (Sondra K. Pardes, J.), dated November 29, 2006. The order denied a motion by Frances Fox to vacate a default judgment.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ.
In this proceeding to confirm an arbitration award made pursuant to the New York State Fee Dispute Resolution Program ( 22 NYCRR part 137), a default judgment was entered in favor of petitioner upon appellant Frances Fox's failure to appear. Appellant thereafter moved to vacate the default judgment and argued that she had a reasonable excuse for the default and a meritorious defense.
The record reveals that the arbitration award in petitioner's favor was entered on November 17, 2005, and the arbitrators' notice to the parties of the award bears the same date. On February 8, 2006, petitioner filed a petition to confirm the arbitration award pursuant to CPLR 7510. On March 21, 2006, appellant failed to appear or submit written opposition to the petition. By order dated April 4, 2006, the District Court confirmed the arbitration award. A default judgment was entered on April 19, 2006 awarding petitioner the total sum of $5,744.75. While the petition to confirm the arbitration award was pending, appellant brought an order to show cause before the Supreme Court, Nassau County, seeking to set aside the arbitration award. By order dated July 27, 2006, the Supreme Court denied appellant's motion on the merits. Thereafter, by order dated November 29, 2006, the District Court denied appellant's motion to vacate the default judgment. This appeal ensued.
A party aggrieved by a New York State Fee Dispute Resolution arbitration award may commence an action on the merits within 30 days of the mailing of the arbitration award, and if no action is commenced within such 30 days, the award becomes final and binding ( 22 NYCRR 137.8 [a]; see Pruzan v Levine , 18 Misc 3d 70 [App Term, 2d 11th Jud Dists 2007]). Here, appellant did not timely seek de novo review. Thus, the arbitration award became final and binding 30 days after it was mailed. Consequently, we find that the District Court did not improvidently exercise its discretion in denying appellant's motion to vacate the default judgment, since appellant failed to demonstrate a meritorious defense ( see CPLR 5015 [a] [1]; Alliance Prop. Mgt. Dev. v Andrews Ave. Equities, 70 NY2d 831; Barasch v Micucci, 49 NY2d 594; Martinez v Otis El. Co., 213 AD2d 523; Tandy Computer Leasing v Video X Home Lib., 124 AD2d 530). Accordingly, the order denying appellant's motion to vacate the default judgment is affirmed.
Rudolph, P.J., and LaCava, J., concur.
Tanenbaum, J., dissents and votes to reverse the order and grant the motion by Frances Fox to vacate the default judgment in the following memorandum:
The dispute underlying this proceeding to confirm an arbitration award involves a claim for fees for attorney's services in a real estate transaction. Appellant Frances Fox contended that the fees were excessive, and the totality of the forms she submitted indicated that she wanted a trial de novo but did not submit the proper papers. I believe that in the interest of justice appellant should be given a full opportunity to litigate this matter and not be limited by the result in arbitration.