Opinion
2012-01-19
Gurumurthy KALYANARAM, Petitioner–Appellant, v. NEW YORK INSTITUTE OF TECHNOLOGY, Respondent–Respondent.
Gallet Dreyer & Berkey, LLP, New York (David T. Azrin of counsel), for appellant. Fulbright & Jaworski L.L.P., New York (Douglas P. Catalano of counsel), for respondent.
Gallet Dreyer & Berkey, LLP, New York (David T. Azrin of counsel), for appellant. Fulbright & Jaworski L.L.P., New York (Douglas P. Catalano of counsel), for respondent.
Appeal from order and judgment (one paper), Supreme Court, New York County (O. Peter Sherwood, J.), entered June 3, 2011 and reentered July 8, 2011, which, after the court had declined to sign petitioner's order to show cause, denied the motion and ordered that judgment be entered against petitioner, unanimously dismissed, without costs, as taken from a nonappealable paper.
There is no right of appeal from an order that does not determine a motion on notice (CPLR 5701[a][2]; see Sholes v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ), including an order declining to sign an order to show cause ( see Naval v. American Arbitration Assn., 83 A.D.3d 423, 919 N.Y.S.2d 339 [2011] ) and a judgment entered upon such an order ( see Hladun–Goldmann v. Rentsch Assoc., 8 A.D.3d 73, 779 N.Y.S.2d 183 [2004] ). In light of the evident lack of merit to the appeal, we decline to grant leave to appeal.
Petitioner's assertion that disputes as to performance of the remedy provisions of the arbitration award should be determined by the arbitrator is without merit. Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 A.D.3d 418, 913 N.Y.S.2d 159 [2010], lv. denied 17 N.Y.3d 712, 2011 WL 4916491 [2011] ), a judgment enforceable by the courts has been entered ( see CPLR 7514), and the arbitrator is functus officio, without power to amend or modify the final award ( see Matter of Hanover Ins. Co. v. American Intl. Underwriters Ins. Co., 266 A.D.2d 545, 698 N.Y.S.2d 908 [1999] ). In any event, petitioner *544 failed to identify any provision of the final award that was violated by respondent.