Opinion
32898/09.
Decided February 23, 2010.
Attorney for Petitioner Law Offices of Steven E. Rosenfeld, PC, New York, NY, Attorneys for Plaintiff.
No Appearance by Respondent.
By order to show cause filed on December 23, 2009, petitioner Marcus Millichap Real Estate Investment Services of NY moves pursuant to CPLR § 7510 for an order confirming an arbitration award and awarding a judgment in its favor against respondents John E. Donegan, Jr. and 231 Duffield Realty Corp. On December 31, 2009, Part 72 of this court directed personal service of the order to show cause, petition and accompanying papers on the respondents on or before January 15, 2010. The respondents neither appeared nor submitted opposition to the motion.
BACKGROUND
On December 23, 2009, petitioner commenced this Article 75 proceeding by filing the instant order to show cause, verified petition and supporting papers with the Kings County Clerk's office. Petitioner's affidavit of service of the instant order to show cause on John E. Donegan, Jr. alleges service pursuant to CPLR § 308(2) to a person of suitable age and discretion. The affidavit contains a date stamp reflecting a filing of the affidavit with the Kings County Clerk's office on January 15, 2010. The affidavit of service on respondent 231 Duffield Realty Corp. alleges personal service pursuant to BCL § 306 (b)(1) by service upon the Secretary of State on January 11, 2010.
The petition alleges the following salient facts. Respondents own a premise located at 231 Duffield Street, Brooklyn, New York ("the subject premise"). On or about July 3rd, 2007, petitioner and the respondents entered into an exclusive brokerage agreement to sell the subject premise. Pursuant to the agreement, respondents agreed to pay petitioner a fee equal to five percent of the total sale price if the premises was sold for $2.655 million or six percent of the sale price of the premises if certain conditions were met. Petitioner alleges that it procured a buyer to purchase the premises for $2.8 million, that a closing took place on June 30th, 2008, and that petitioner never received its fee. The agreement also provided that any controversy or claim arising out of the agreement would be settled by final binding arbitration administered before the American Arbitration Association (AAA) and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
MOTION PAPERS
The petitioner's motion papers consist of the order to show cause, a verified petition, two affidavits of service, one affidavit of attempted service, an attorney's affirmation and eight annexed exhibits labeled A through H. Exhibit A is described as the arbitration award. Exhibit B and C are described as dispositions of applications of clarification of the award. Exhibit D is described as the agreement to arbitrate. Exhibit E is described as a contract of sale for the premises. Exhibit F is described as a copy of the demand for arbitration and a certificate of service upon respondents executed by a Florida attorney for petitioner. Exhibit G is described as a notice of compensation arrangements for the arbitrator. Exhibit H is described as a notice of appointment of the arbitrator.
LAW AND APPLICATION
The original order to show cause required "personal delivery" of a copy of the order and the papers upon which it is based, on each of the respondents on or before January 15, 2010. The affidavit of service of the order to show cause alleges service upon John E. Donegan, Jr. pursuant to CPLR § 308(2) to a person of suitable age and discretion. The affidavit of service was stamped "filed" by the Kings County Clerk on January 15, 2010. Service according CPLR § 308(2) is deemed complete 10 days after filing of the affidavit of service. Therefore, service upon John E. Donegan, Jr. was not complete until January 25, 2010. The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with ( Hennessey v. DiCarlo , 21 AD3d 505 [2nd Dept., 2005]). Inasmuch as petitioner did not comply with the directions of the court, the court never obtained personal jurisdiction over John E. Donnegan, Jr.
CPLR § 7502(a) prescribes that a special proceeding must be commenced in order to confirm an arbitration award. CPLR § 403(d) allows for a special proceeding to be brought by order to show cause instead of notice of petition. CPLR § 7510 provides that the court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in CPLR § 7511.
The standards governing motions for summary judgment are applicable to special proceedings generally ( See, Worldwide Asset Purchasing, LLC. v. Karafotias , 9 Misc 3d 390 (NY Civ. Ct. 2005]). Even though there is no opposition to the instant motion, the motion may be granted only if the movant has made a prima facie showing that it is entitled to judgment as a matter of law (id.)
In order for petitioner to make a prima facie showing that its arbitration award should be confirmed, its petition must allow this court to find, among other things, a writing sufficient to constitute a binding agreement to arbitrate under
CPLR § 7501 ( Gutman v. Friedman, 170 AD2d 606 [2nd Dept. 1991]). Petitioner's counsel contends in his affirmation in support of the motion that exhibit D is the agreement to arbitrate. The affirmation, however, demonstrates no personal knowledge of the underlying facts or transactions. The petition is verified by counsel pursuant to CPLR § 3020(d)(3) and therefore, cannot be used as an affidavit of the petitioner pursuant to CPLR § 105(u). Thus, neither the affirmation of counsel nor the petition provides any probative value for purposes of summary determination. ( See, Worldwide Asset Purchasing, LLC. v. Karafotias, supra 9 Misc 3d 390 ; see also Zuckerman v. City of New York, 49 NY2d 557).
The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may serve as a vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form', e.g. documents, transcripts ( Worldwide Asset Purchasing, LLC. v. Karafotias, supra 9 Misc 3d 390 ). However, exhibit D is not admissible as a self authenticating document under any provision of Article 45 of the CPLR. In sum, no one with personal knowledge has authenticated the alleged agreement to arbitrate, the agreement is not self authenticating and the petitioner has not advanced any theory by which it may be deemed to be in admissible form. The document is thus of no probative value.
In addition to a showing of an agreement to arbitrate, the petition must provide "proof . . . that timely written notice of the time and place of the arbitration hearing . . . was delivered" in accordance with the requirements of CPLR § 7506(b) ( 21 Lizensk Corp. v. Spillman , 14 AD3d 617 [2nd Dept. 2005]; see also, Hanover Insurance Co. v. Cannon Express Corp. , 1 AD3d 358, 359[2nd Dept. 2003]).
CPLR § 7506(b) states: "The arbitrator shall appoint a time and place for the hearing and notify the parties in writing personally or by registered or certified mail not less than eight days before the hearing . . ." Petitioner has come forth with no evidentiary proof in admissible form that the arbitrator notified respondent via registered or certified mail not less than eight days before the hearing. The assertion in paragraph 29 of the petition that "copies of the arbitration and award and the disposition were served upon petitioner and respondents by the arbitrator" does not suffice to satisfy the mandate of CPLR § 7506(b). In order for petitioner to have satisfied this mandate, petitioner would have needed to provide this court with evidentiary proof in admissible form that the arbitrator properly notified respondent.
"Precisely because arbitration awards are subject to . . . judicial deference, it is imperative that the integrity of the process as opposed to the correctness of the individual decision, be zealously safeguarded." ( Uniformed Firefighters Ass'n. v. City of Long Beach,
307 AD2d 365-366 [2nd Dept., 2003], citing Goldfinger v. Lisker, 68 NY2d 225, 231). "Arbitrators . . . may act only upon proof adduced at a hearing of which due notice has been given to each party (CPLR § 7506(b) and (c))"( Worldwide Asset Purchasing, LLC. v. Karafotias ,9 Misc 3d 390).
Therefore, petitioner's motion to confirm an arbitration award and enter judgment in its favor is denied and the petition is dismissed without prejudice.
The foregoing constitutes the decision and order of this court.