Opinion
No. 2023-1056 Q C
09-27-2024
Slomin's, Inc., Respondent, v. Georgios Kyprianides, Appellant.
Rabinowitz, Galina & Rosen (Gayle A. Rosen of counsel), for appellant. Kirschenbaum & Kirschenbaum, P.C. (Daniel A. Shafer of counsel), for respondent.
Unpublished Opinion
Rabinowitz, Galina & Rosen (Gayle A. Rosen of counsel), for appellant.
Kirschenbaum & Kirschenbaum, P.C. (Daniel A. Shafer of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated March 23, 2023. The order granted a petition to confirm an arbitration award dated April 4, 2022 and denied respondent's cross-motion to vacate the award.
ORDERED that the order is modified by providing that the petition to confirm the April 4, 2022 arbitration award is denied, the arbitration award is vacated, and the matter is remitted to Arbitration Services, Inc. for a hearing and determination before a different arbitrator (see CPLR 7511 [d]); as so modified, the order is affirmed, without costs.
Petitioner commenced this special proceeding to confirm an arbitration award in its favor issued by Arbitration Services, Inc. (ASI). The rules of ASI regarding the commencement of an arbitration proceeding, which may be followed even though their method of service and answering may be different from that set forth in the CPLR (see Matter of New York Merchants Protective Co. v Mima's Kitchen, Inc., 114 A.D.3d 796 [2014]), state that an answer to a demand for arbitration has to be served within 15 days of the service of the demand for arbitration from ASI. The arbitrator's award established that the demand was served on respondent on March 17, 2022, thus making March 18, 2022 the first day of respondent's 15 days to answer (see generally General Construction Law § 20; 103 NY Jur 2d, Time § 9). On April 1, 2022, the final day respondent could answer, a hearing was held in the arbitration proceeding at which respondent failed to appear, and the arbitrator issued an award. The award was mailed to the parties on April 4, 2022. On January 12, 2023, petitioner commenced this special proceeding, pursuant to CPLR 7510, to confirm the award in its favor in the sum of $3,874.32. On February 2, 2023, respondent filed a cross-motion to vacate the arbitration award on the ground that he never received the demand for arbitration and that, even if service was proper, the arbitrator failed to follow proper procedures, as respondent was not given 15 days to serve an answer to the demand for arbitration prior to the hearing. In an order dated March 23, 2023, the Civil Court (Ira R. Greenberg, J.) granted the petition to confirm the award and denied respondent's cross-motion to vacate the award as untimely.
CPLR 7510 states that "[t]he court shall confirm an award upon application of a party made within one year after its delivery to them, unless the award is vacated or modified upon a ground specified in section [7511]" (see also D & W Cent. Sta. Fire Alarm Co., Inc. v United Props. Corp., 34 Misc.3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Pursuant to CPLR 7511 (a), "[a]n application to vacate or modify an award may be made by a party within ninety days after its delivery to him."
Here, the record establishes that respondent did not move to vacate within 90 days after delivery of the arbitration award, that the petition to confirm was filed within one year and that respondent's cross-motion to vacate the award was untimely. However, the fact that respondent failed to move within 90 days to vacate the award did not preclude him from seeking vacatur in opposition to petitioner's motion to confirm the award (see Jurcec v Moloney, 164 A.D.3d 1431 [2018]; Matter of Lyden v Bell, 232 A.D.2d 562 [1996]; Matter of Brentnall v Nationwide Mut. Ins. Co., 194 A.D.2d 537 [1993]; Matter of American Tr. Ins. Co. v Nationwide Mut. Ins. Co., 18 Misc.3d 137 [A], 2008 NY Slip Op 50295[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Consequently, while respondent's cross-motion to vacate the award was untimely, we deem his affidavit in support of the cross-motion as opposition to the petition to confirm.
Pursuant to CPLR 7511 (b) (1) (iv), an award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by the failure to follow the procedure of CPLR article 75, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection. Respondent correctly asserts, among other things, that the arbitrator failed to follow procedures when, contrary to the rules of ASI, respondent was not given a full 15 days to serve an answer to the demand for arbitration prior to the arbitrator conducting the hearing, as the hearing was held on April 1, 2022, the 15th day. This resulted in the issuance of what was, in effect, a default award in favor of petitioner. Under the circumstances, respondent was prejudiced by the misconduct (see Matter of Paluch v Kohn, 204 A.D.3d 804 [2022]). Insofar as respondent set forth a meritorious statutory ground for vacating the award (see CPLR 7511 [b] [1] [iv]), the court erred in granting petitioner's motion to confirm the award.
In view of the foregoing, petitioner's request for sanctions or for an award of attorney's fees incurred in defending the appeal is denied (see Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1 [c] [1]).
Accordingly, the order is modified by providing that the petition to confirm the April 4, 2022 arbitration award is denied, the arbitration award is vacated, and the matter is remitted to Arbitration Services, Inc. for a hearing and determination before a different arbitrator (see CPLR 7511 [d]).
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.