Opinion
2014-2715 Q C
04-25-2016
Alan J. Porto, Respondent, v. Robert S. Porto, Appellant.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 18, 2014. The order denied defendant's motion to vacate an arbitrator's award, and, in effect, the judgment that was entered pursuant thereto.
ORDERED that the order is affirmed, without costs.
In this small claims action, plaintiff seeks to recover the principal sum of $5,000, which is the ostensible value of a car that belonged to the parties' mother prior to her death, and which defendant allegedly took without authority to do so. The parties signed a "consent to arbitration" form, in which they confirmed that they had been informed that the arbitration award would be final and that no appeal would be permitted. Following the arbitration, the arbitrator awarded plaintiff the principal sum of $1,000, and judgment was entered pursuant to the award (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.41 [n] [5]). Defendant moved to vacate the arbitration award and, in effect, the judgment entered pursuant thereto, on the grounds that the parties' dispute was governed by a contract which specified different procedures for arbitration, that the arbitrator had not permitted defendant to present all his evidence, and that the arbitrator had not been impartial. By order entered September 18, 2014, the Civil Court denied defendant's motion.
A party seeking to vacate or modify a small claims arbitration award has the burden of establishing, by clear and convincing evidence, one of the statutory grounds enumerated in CPLR 7511 (b) (see Ruse v Agnone, 44 Misc 3d 129[A], 2014 NY Slip Op 50983[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Benham v George, 28 Misc 3d 128[A], 2010 NY Slip Op 51190[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also Matter of Arab v ATC Jewelers, Inc., 45 AD3d 588 [2007]). The lack of a record permitting meaningful review is fatal to a party's attempt to carry its burden (see e.g. Vick v Albert, 34 AD3d 331 [2006]; Benham v George, 28 Misc 3d 128[A], 2010 NY Slip Op 51190[U]). In this case, there is no record of the evidence that was presented to the arbitrator (see May v Scotto-D'Abusco, 31 Misc 3d 148[A], 2011 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
While, under CPLR 7511 (b) (ii), the partiality of an arbitrator may be an appropriate basis for vacating an arbitration award, the record in this case is inadequate to support a finding that the arbitrator was not impartial. To the extent that defendant challenges the arbitrator's interpretation of the document which, he claims, governed the parties' dispute, we note that there is no record of what evidence the arbitrator had before him when he rendered his decision. Moreover, even if we disagreed with the arbitrator's interpretation of the document before him, such disagreement would not be an adequate basis to upset the arbitration award, absent a showing that the arbitrator's award was so "completely irrational" as to constitute misconduct ( see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578 [1977]). As defendant has failed to establish any ground under CPLR 7511 (b) to vacate the arbitration award and, in effect, the judgment entered pursuant thereto, we find no basis to disturb the Civil Court's order.
Accordingly, the order is affirmed.
Elliot, J.P., Weston and Solomon, JJ., concur. Decision Date: April 25, 2016