Humphrey v. New York Motorcycle

Full title: KIMILYN HUMPHREY, Appellant, v. NEW YORK MOTORCYCLE, Respondent

Court: Appellate Term of the Supreme Court of New York, Second Department

Date published: Mar 27, 2006

2006 N.Y. Slip Op. 50470 (N.Y. App. Term 2006)

816 N.Y.S.2d 696

Opinion

2003-400 Q C.

Decided March 27, 2006.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered June 20, 2002. The order denied plaintiff's motion to vacate the arbitrator's award.

Order reversed without costs, plaintiff's motion to vacate the arbitrator's award granted and matter remanded for all further proceedings.

PRESENT: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ

Plaintiff commenced the instant small claims action to recover the sum of $3,000 for defective repairs to her jet ski. After arbitration, plaintiff was awarded the sum of $959 and moved to vacate the award on the ground that the arbitrator committed misconduct by engaging in an ex parte conversation with defendant after the hearing.

In its decision denying plaintiff's motion, the court noted that the arbitrator did in fact engage in an ex parte communication with defendant and defendant's attorney after the hearing concluded. Inasmuch as the mere appearance of impropriety or partiality is sufficient to warrant the vacatur of an arbitrator's award ( see Matter of Goldfinger v. Lisker, 68 NY2d 225; Matter of Kern [303 E. 57th St. Corp. Excelsior 57th St.], 204 AD2d 152), the lower court improperly denied plaintiff's motion to vacate same.

Golia and Belen, JJ., concur.

Weston Patterson, J.P., dissents in a separate memorandum.

WESTON PATTERSON, P.J., dissents and votes to affirm the order in the following memorandum:

In my view, the record is insufficient to conclude that the arbitrator's private communication with a party-litigant rose to the level of misconduct warranting vacatur of the arbitrator's award. Although private communications between an arbitrator and a party-litigant may constitute misconduct where the communication concerns the dispute at hand ( see Matter of Goldfinger v. Lisker, 68 NY2d 225, 232), private communications involving matters of "personal concern" that are "wholly unrelated to the subject matter of the arbitration" do not constitute misconduct ( Matter of Hausknecht v. Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778 [2nd Dept 2005]).

Here, it is impossible to ascertain from the record whether the communication at issue was anything more than a harmless personal exchange. Other than plaintiff's allegation that a "lengthy conversation" occurred, the record contains no reference to the substance of that conversation. Plaintiff failed to object to the communication at the time it was made and nothing in the record suggests that plaintiff was prejudiced by it ( see CPLR 7511 [b] [1] [i]). To the contrary, plaintiff secured an award in her favor in the sum of $959. Under these circumstances, plaintiff has failed to come forward with sufficient evidence to justify vacating the arbitrator's award on the basis of misconduct.