Opinion
No. 31/2004.
2013-04-30
Shlomtze WEISZ, Plaintiff, v. Mordechai WEISZ, Defendant.
Joel N. Yacoob, Esq., Neuhaus & Yacoob, LLC, Brooklyn, attorney for plaintiff. Harvey S. Jacobs, Esq., Brooklyn, attorney for defendant.
Joel N. Yacoob, Esq., Neuhaus & Yacoob, LLC, Brooklyn, attorney for plaintiff. Harvey S. Jacobs, Esq., Brooklyn, attorney for defendant.
JEFFREY S. SUNSHINE, J.
Upon the foregoing papers, the plaintiff moved by notice of motion, dated March 10, 2013, seeking an order of this Court to (1) permanently stay arbitration before arbitrator Rabbi Shmuel (a/k/a Samuel a/k/a Shmiel) Fried (hereinafter referred to as the arbitrator) and all associated relief originally sought in an Order to Show Cause, dated October 25, 2012, pursuant to CPLR 2221(d), (e) and (f); (2) grant the plaintiff poor person relief to file this and any future applications in this action pursuant to CPLR 1101(a); and (3) for such other relief the court deems sufficient and proper. The defendant opposed the application.
Factual and Procedural Background
The parties' entered into a stipulation of settlement on December 30, 2003, wherein they agreed that, inter alia,
TWENTY–FIRST: On all controversies,
disputes, or interpretation of this agreement, the parties shall appear before Rabbi Shmiel Fried to arbitrate. The parties acknowledge that they have already signed an arbitration agreement, whereby they agreed to abide by Rabbi Shmiel Fried's decisions. Said arbitration agreement is still in effect now and in the future. The parties, by their signatures on this agreement, do hearby confirm said arbitration agreement to be in effect and that they will abide by Rabbi Fried's decisions.
Thereafter, the judgment of divorce, signed by the Hon. Joseph Silverman on January 29, 2004, stated, inter alia, that “... the agreement/stipulation dated December 30, 2003, a copy of which is attached, and incorporated by reference into this judgment shall survive and not merge into this judgment ...”. The parties' stipulation was incorporated but did not merge into the judgement of divorce.
The plaintiff brought an order to show cause, dated October 26, 2012, seeking a stay of the arbitration proceeding before the arbitrator and disqualification of him as an arbitrator. The defendant opposed the application and filed a cross motion to compel the plaintiff to continue with arbitration. The court heard oral argument on the parties' applications on December 4, 2012. The plaintiff's request for a stay of the arbitration was granted to the extent that it stayed arbitration of the issues of custody and visitation and denied the request to stay arbitration on all financial issues by an order of this court dated December 24, 2012. The plaintiff, thereafter, filed a notice to appeal in the Appellate Division, Second Department on February 28, 2013. The Appellate Division, Second Department denied plaintiff's motion to stay arbitration pending the appeal on March 13, 2013 ( see Weisz v.. Weisz, Slip Opinion No: 2013 N.Y. Slip Op 67239(U) [2 Dept., March 13, 2013] [“Motion by the appellant, inter alia, to stay enforcement of an order of the Supreme Court, Kings County, dated December 24, 2012, pending hearing and determination of an appeal therefrom. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ORDERED that the motion is denied.”]; and on November 15, 2012 ( see Weisz v. Weisz, 2012 N.Y. Slip Op 90410(U) [2 Dept., November 15, 2012] [“Motion by the plaintiff for leave to appeal to this Court from an order of the Supreme Court, Kings County, dated October 26, 2012, and to stay a certain arbitration between the parties, pending hearing and determination of the appeal. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ORDERED that the branch of the motion which is for leave to appeal is denied; and it is further, ORDERED that the motion is otherwise denied as academic.”] ).
The plaintiff also filed a civil action against the defendant (Shlomtze Weisz individually, and Shlomtze Weisz as sole legal custodian on behalf of Malki Weisz and Udi Weisz v. Gerald Lee David, John Doe Corporation or Other Organized Entity, Shmuel Fried a/k/a Samuel Fried a/k/a Shmiel Fried, Mordechai Weisz, Touro College, or other John Doe Entity a/k/a Touro College and Interborough Developmental and Consultation Center Inc., under index number 2383/2013), arbitrator Rabbi Fried, and psychologist Dr. Gerald David on February 7, 2013 under index number 2383/2013 (hereinafter referred to as the “civil action”). The arbitrator filed a pro se answer, dated March 4, 2013, in the civil action. The civil action is pending in the Supreme Court, Kings County and this Court takes judicial notice of the pleadings under index number 2383/2013 ( see Khatibi v. Weill, 8 AD3d 485 [2 Dept., 2004] [“... this court may take judicial notice of undisputed court records and files”]; see also Ramsey v. Ramsey, 69 AD3d 829 [2 Dept., 2010] ).
At this time, plaintiff seeks to renew and reargue this Court's decision, dated December 24, 2013, denying her application to stay of the arbitration before the arbitrator and to disqualify him. Pursuant to CPLR 221(e)(2), plaintiff alleges new facts not offered on the prior motion in the form of a pro se answer, dated March 4, 2013, (hereinafter referred to as the “answer”) filed by the arbitrator in the civil action she commenced against him. Plaintiff alleges that this Court should consider the answer in support for her allegation that the arbitrator is biased against her and that, therefore, the Court should grant her leave to renew her prior motion which this Court decided December 24, 2012. Pursuant to CPLR section 221(d)(2), plaintiff further seeks leave to reargue and alleges that this court overlooked or misapprehended matters of fact or law relating to factual claims regarding arbitrator the arbitrators conduct that, when considered, would presenting a legal justification for her application that The arbitrator be disqualified.
Plaintiff's Contentions
In support of plaintiff's motion for leave to renew, plaintiff presents The arbitrator's answer, dated March 4, 2013, to plaintiff's pro se civil verified complaint, dated February 14, 2013. Plaintiff asserts that because the arbitrator's answer was filed after the prior application was submitted and decided, plaintiff has a reasonable justification for failing to present such facts and proofs on the prior motion. Plaintiff indicates that the arbitrator's admission regarding his request and review of psychological reports indicates misconduct. Plaintiff posits that paragraph 7 of the arbitrator's answer, wherein he denies certain allegations in plaintiff's complaint, indicates that he was involved in the divorce negotiations between the parties and that in his view the reason the parties divorced was that the plaintiff did not want to “go for help” regarding marital difficulties between her and the defendant and instead sought a divorce. Plaintiff alleges that the arbitrator's answer was “[i]n response to Plaintiff's statements that Defendant perpetrated domestic violence against her ...” and that the arbitrator is biased against her. Plaintiff posits that because a finding of domestic violence was previously made by the Immigration and Naturalization Service (hereinafter referred to as “INS”) that the arbitrator displays his bias by disputing facts that were, she alleges, reviewed and accepted as true by the INS.
The plaintiff further asserts that the arbitrator's statements regarding the circumstances surrounding plaintiff's previous divorce were irrelevant and slanderous, and serve to “besmirch” her reputation without disclosing how the Arbitrator's knows of such information.
This court notes that the issue of domestic violence was not an issue litigated before this court. Furthermore, there is not indication that the defendant participated in the INS proceeding which allegedly made a finding of domestic violence.
Plaintiff further alleges that the arbitrator's statements that visitation is main conflict between the parties', without mentioning child support arrears or holding a hearing on these specific issues, reveal that the arbitrator has prematurely adopted the defendant's “point of view”. Plaintiff contends that defendant does not regularly pay child support and other monies he is obliged to pay pursuant to Court orders which results in her detriment because she cannot pay her bills which also affect the health and well-being of the parties' children. Plaintiff claims that the arbitrator is a “goon” hired by the defendant to shield him from his court ordered financial obligations.
Plaintiff also notes that the arbitrator acknowledges in his answer that he received information from his daughter, a mediator, that he instituted between the parties, and from conversations with the parties regarding conflicts between them in the past. Plaintiff posits that the arbitrator's statement that he spoke with the mediator, his daughter, proves that the mediator revealed privileged communications to the arbitrator and created a conflict. Furthermore, plaintiff posits that it was improper for the arbitrator to appoint his daughter to mediate between the parties. It is not disputed that the arbitrator has acted as the arbitrator between theses parties for an extensive period of time.
Finally, the plaintiff alleges that she cannot receive an unbiased adjudication before the arbitrator because he is now a defendant in the civil action she initiated against him. Plaintiff avers contends that due to the civil suit that plaintiff commenced against him, plaintiff now fears that the arbitrator will be vengeful towards the plaintiff in the future, and that the court should take this into consideration in rendering its decision.
In support of her motion for leave to reargue, plaintiff asserts that this Court overlooked and misapprehended matters of fact and law offered on the prior motion relating to factual claims regarding the arbitrator's conduct and plaintiff's legal justification for the arbitrator's disqualification. Plaintiff avers that this Court denied her attempt to compel the Defendant to pay child support arrears based on the arbitration clause in the parties' stipulation. At oral argument, plaintiff posited that the arbitrator perpetrated misconduct in the form of, inter alia, obtaining the children's psychological records, engaging in behavior attempting to cause her to lose her job and forcing her to arbitrate custody and visitation issues while refusing to arbitrate her request for child support and failing to conform to the rules of CPLR Article 75.
Plaintiff further contends that this Court denied her request for a stay of the arbitration pursuant to the arbitration provision in the parties' stipulation of settlement in “complete disregard” of well-settled case law on the issue of arbitrator misconduct. Plaintiff further states that a notice of appeal and brief in support was filed and will show that this Court was “clearly wrong on the law” when it issued the December 24, 2012 decision because, plaintiff posits, at all times the Supreme Court retains inherent statutory power under CPLR Article 75 to disqualify an arbitrator before an award has been rendered in an arbitration. Plaintiff posits that this is especially true in this case where, procedurally, there is no arbitration proceeding commenced. Plaintiff further contends that the arbitrator displays bias against her and resolved issues however he deemed appropriate without any consideration to the “human cost” to her and the parties' two (2) adolescent children.
Plaintiff posits that parties to an arbitration have a right to a fair adjudication, free of bias and misconduct and that the arbitrator “had his chance to perform the role of arbitrator and failed” and his failure caused direct harm to the parties' children in violation of public policy by failing to enforce and modify the defendant's child support and by engaging in behavior that she avers interfered and potentially jeopardized her employment. Plaintiff further contends that the procedural “hoops” and higher standard of review necessary to set aside an arbitration decision after it is rendered would prejudice her and cause her unnecessary harm because, she avers, there would be a delay for her to seek relief if she is required to complete arbitration because of the possibility that she will be “stuck” with a decision that “is unfair” to her. Plaintiff further avers that the arbitrator “can easily craft a decision which flies under the radar of judicial intervention yet accomplishes his intended harm.” Lastly, plaintiff alleges that it is not reasonable for the court to order her to adjudicate future disputes before an individual who, she posits, is “clearly corrupt”. She contends that “[t]he trauma [she] and her children have already gone through is more than enough”.
Plaintiff contends that pursuant to CPLR 1101(a), a fee waiver should be granted for her applications in this court. She avers that she is the primary caretaker of the parties' two (2) minor daughters and she posits that the defendant has for the last year and a half wilfully refuses to pay child support and other expenses in violation of the parties' stipulation of settlement. Plaintiff avers that she struggles to pay rent, utility bills, and to provide food for herself and the parties' children. Plaintiff avers that she earns a nominal sum as a motivational speaker but that she must subsidize her earnings with government benefits, public assistance and financial support from community religious organizations and family members overseas. She avers that she is also presently heavily indebted to lenders for loans. Plaintiff states that her monthly income is approximately $1,650.00 and that her bank account balance is approximately $664.37. Plaintiff avers that she has no other savings, property, assets or income, and that she is unable to pay the filing fees necessary to assert her rights in this case. She claims that no person other than she and the defendant, who she posits is able to pay the total filing fees associated with this matter, has an interest in the outcome of this case. It should be noted that plaintiff's counsel stated in open court that he is appearing pro bono in this action.
Defendant's Contentions
Defendant opposes plaintiff's application. Defendant contends that the plaintiff offers no new facts upon which to grant a motion for leave to renew, but merely interprets the arbitrator's answer in a manner designed to create new facts. Defendant argues that the arbitrator is not attempting to arbitrate custody and visitation issues in violation of existing and well-settled case law. Defendant posits that the plaintiff returns to this court attempting to obtain a stay of arbitration and removal of the arbitrator which is relief that she previously unsuccessfully attempted to obtain both in this court and in the Appellate Division. Defendant posits that plaintiff is forum shopping in an attempt to create a stay of the arbitration. Defendant posits that the plaintiff also fails to establish that the Court overlooked or misapprehended issues of fact or law in the December 24, 2012 decision. Defendant posits that the plaintiff's applications here to renew and to reargue are frivolous and a waste of the judicial resources and should be denied.
Finally, defendant requests in his affirmation in opposition that this Court award a reasonable counsel fee for the defense against plaintiff's “frivolous motion”. Defendant's papers are silent as to the issue of plaintiff's request for poor person status.
Discussion
Motion for Leave to Reargue
Pursuant to CPLR section 2221(d)(2), a motion for leave to reargue “shall not include any matters of fact not offered on the prior motion.” Accordingly, the court will not consider any allegedly new information submitted by plaintiff in deciding the plaintiff's motion for leave to reargue. In support of the motion for leave to reargue, plaintiff restated the allegations of a prior motion that, after oral argument, this court denied by an order dated December 24, 2012. The court notes that plaintiff's motion to stay the enforcement of this Court's order dated December 24, 2012, pending a hearing and a determination of an appeal was denied twice by the Appellate Division, Second Department, on March 13, 2012 ( see Weisz v. Weisz, Slip Opinion No: 2013 N.Y. Slip Op 67239(U) [2 Dept., March 13, 2013]; see also Weisz v. Weisz, 2012 N.Y. Slip Op 90410(U) [2 Dept., November 15, 2012]. Accordingly, plaintiff's motion for leave to reargue is denied.
Motion for Leave to Renew
CPLR 2221(e)(2) states, in relevant part, that “[a] motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.”
Plaintiff does not assert that there was a change of law. Plaintiff does aver that there are new facts. The civil action against the arbitrator was commenced by the plaintiff herein on February 7, 2013, and the arbitrator submitted his answer shortly thereafter on March 4, 2013. Oral argument of plaintiff's order to show cause, dated October 26, 2012, was heard on December 4, 2012 and the order with notice of settlement was signed on December 24, 2012. Clearly, the answer was not available at the time of plaintiff's application. Accordingly, plaintiff's request to permanently stay arbitration can be considered in light of the arbitrator's answer submitted in the separate civil action only if the new facts would change the prior determination.
At issue, therefore, is whether the new facts would change the prior determination of this Court. Plaintiff sought a permanent stay of arbitration contrary to the parties' stipulation of settlement dated December 30, 2003. “It is firmly established that the public policy of New York State favors and encourages arbitration and alternative dispute resolutions.” (Westinghouse Electric Corp. v. New York City Transit Authority, 82 N.Y.2d 47, 623 N.E.2d 531 [1993] ). The Court of Appeals held that “[p]arties, by agreement, may substitute a different method for the adjudication of their disputes than those which would otherwise be available to them in public courts of law.” (Siegel v. Lewis, 40 N.Y.2d 687, 358 N .E.2d 484 [1976], citing Cross & Brown Co. v. Nelson, 4 A.D.2d 501, 502 [1 Dept., 1957] ).
When they do so, they in effect select their own forum. Their quest is usually for a nonjudicial tribunal that will arrive at a private and practical determination with maximum dispatch and at minimum expense (Mandel, Preparation of Commercial Agreements [1973 ed], p 65). It has long been the policy of the law to interfere as little as possible with the freedom of consenting parties to achieve that objective.
Arbitration agreements are often a part of matrimonial stipulations of settlement. The Court of Appeals held that
[a]rbitration clauses are by now familiar provisos in separation agreements. Indeed, aside from expressing the parties' preference for a means of dispute resolution more informal, more expedient and possibly less costly than litigation (Matter of Siegel [Lewis], 40 N.Y.2d 687, 689), an arbitration provision may well have been intended to furnish insulation from the potential for notoriety and other stresses that so often accompanies the airing of marital disputes in court ( see Matter of Lasek v. Lasek, 13 A.D.2d 242, 244). Moreover, resort to the arbitral forum may afford the spouses an opportunity to have their grievances heard by someone who they think may be especially well qualified in matrimonial matters. ( See 1 Lindey, Separation Agreements and Ante–Nuptial Contracts, § 29.)
(Bowmer v. Bowmer, 50 N.Y.2d 288, 406 N.E.2d 760 [1980] ).
The Court of Appeals in Yonkers Contracting Company, Inc v. Port Authority Trans–Hudson Corporation (87 N.Y.2d 927, 663 N.E.2d 907 [1996] ) stated that “[a]s a general proposition, parties to an arbitration contract are completely free to agree upon the identity of the arbitrators, and New York courts have therefore regularly refused to disqualify arbitrators on grounds of conflict of interest or partiality, even in cases where the contract expressly designate[s] a single arbitrator ... employed by one of the parties.” In the case at bar, the parties' not only agreed in their stipulation of settlement to submit any dispute to arbitration, they specifically identified Rabbi Fried to arbitrate and agreed to abide by his decisions. The arbitrator has served as an arbitrator to these parties as far back as the negotiation of the parties stipulation of settlement which was dated December 30, 2003.
“Arbitrators, though their office is not one established by law, are expected
to faithfully and fairly' hear and decide the respective claims of the parties by whose consent they are chosen (CPLR 7506, subd [a] ), but their qualifications are not measured by the standards prescribed for Judges (Sturges, Arbitration—What is it?, 35 NYU L Rev 1030, 1045–1046). The parties' reasons for the selection of particular arbitrators may in fact be the very ones which would have disqualified Judges or jurors ( see Matter of Amtorg Trading Corp. [Camden Fibre Mills], 277 App.Div. 531,aff'd304 N.Y. 519;Matter of Perl [General Fire & Cas. Co.], 34 A.D.2d 748).” (Siegel v. Lewis, 40 N.Y.2d 687 supra).
Moreover, it is well settled that “... parties may be bound by a determination by an arbitrator selected to decide the issues before him on the basis of his knowledge alone. Therefore, strange as it may seem to those steeped in the proscriptions of legal and judicial ethics, a fully known relationship between an arbitrator and a party, including one as close as employer and employee ... or attorney and client, will not in and of itself disqualify the designee.” ( Id.).
Pursuant to CPLR section 7501 entitled “Effect of arbitration agreement”, states that
A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.
In interpreting this statute, the Court of Appeals stated that “[s]ignificantly, our statutes, which provide specifically for the enforcement of private arbitration agreements and for the vacatur or modification of awards improperly made, are completely silent on any power to disqualify arbitrators in advance of arbitration proceedings (CPLR art 75). It is only when an arbitrator cannot act for reasons of health or unavailability or other circumstances tantamount to the occurrence of a vacancy that there is statutory authorization for a court to appoint a replacement (CPLR 7504).” (Siegel v. Lewis, 40 N.Y.2d 687 supra; see also New York City Transit Authority v. Transport Workers Union of America, 14 NY3d 119, 124 [2010] [“The [respondent's] view overlooks the settled law in New York that it is ‘not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute.’ “] ).
However, the Court of Appeals has held that “... in an appropriate case, the courts have inherent power to disqualify an arbitrator before an award has been rendered.” (Astoria Medical Group v. Health Insurance Plan, 11 N.Y.2d 128, 182 N.E.2d 85 [1962] ). Furthermore, the Appellate Division, Second Department in Uniformed Firefighters Assoc., Local 287 v. City of Long Beach (307 A.D.2d 365, 762 N.Y.S.2d 819 [2 Dept., 2003] ) held that
The Supreme Court, during the pendency of an arbitration proceeding, has the discretion to consider an application of a party challenging the misconduct or bias of the arbitrator” [citations ommitted]. “The proper standard of review for the disqualification of arbitrators is whether the arbitration process is free of the appearance of bias” [citation omitted]....
Precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded” [citation omitted]. The “basic, fundamental principles of justice require complete impartiality on the part of the arbitrator and mandate that the proceedings be conducted without any appearance of impropriety” [citation ommitted]. Contrary to the appellant's contention, the arbitrator's presence as a party in this proceeding is not required in order to accord complete relief and he will not be inequitably affected by the outcome of the proceeding ( seeCPLR 1001 [a] ).
Similarly, in Rabinowitz v. Olewski (100 A.D.2d 539, 473 N.Y.S.2d 232 [2 Dept., 1984] ) the Appellate Division, Second Department held
The law is well settled that “in an appropriate case, the courts have inherent power to disqualify an arbitrator before an award has been rendered” (Matter of Astoria Med. Group [Health Ins. Plan], 11 N.Y.2d 128, 132; see Matter of Belanger v. State Farm Mut. Auto Ins. Co., 74 A.D.2d 938). Even in Matter of Siegel (Lewis) (40 N.Y.2d 687, 691, quoting from dissenting opn at App.Div. 50 A.D.2d 858, 859 [Martuscello, J.] ), relied on heavily by the defendants, the Court of Appeals acknowledged the equitable power of the courts to intervene in an arbitration proceeding before an award is rendered, when there is “ ‘a real possibility that injustice will result’ “. The proper standard of review for the disqualification of arbitrators is whether the arbitration process is free of the appearance of bias [citations omitted].
However, the application of this rule is generally narrow in scope. “While in appropriate cases, the courts have inherent power to disqualify an arbitrator before an award has been rendered, that extraordinary relief should only be employed where there exists a real possibility that injustice will result.' An application to disqualify an arbitrator during the course of the arbitration must be based on misconduct on the part of the arbitrator. And while the appearance of bias may suffice, that bias must be clearly apparent based upon established facts, not merely supported by unproved and disputed assertions.” (Bronx Lebanon Hospital v. Signature Medical Mgt. Group, 6 AD3d 261 [1 Dept., 2004]; see Nachmani v. by Design, LLC, 74 AD3d 478 [1 Dept, 2010] ).
In this case, plaintiff avers in her affidavit in support that “... [i]t
would be impossible for me to appear before the arbitrator and receive an honest adjudication, as he is a Defendant in a pending action related to my children and me.” Although arbitrators are not held to the standard of the judiciary, this court notes that the Court of Appeals held that
... Judges of this Court are not disqualified automatically merely because they are named parties. A judge cannot be disqualified merely because a litigant sues or threatens to sue him or her. We cannot encourage such an easy method of disqualification' (In re Vermont Supreme Ct. Admin. Directive No. 17 v. Vermont Supreme Ct., supra, 154 Vt, at 226, 576 A.2d, at 132 [emphasis in original] ). Rather, the nature of the conflict posed by acting as both Judge and party in the particular case, and the efficacy of replacing the Judges, must be considered ( see, Ex parte Farley, supra; State ex rel. Hash v. McGraw, supra; In re Vermont Supreme Ct. Admin. Directive No. 17 v. Vermont Supreme Ct., supra; Cameron v. Greenhill, supra ).
(New York State Association of Criminal Defense Lawyers et al., v. Kaye, 95 N.Y.2d 556 [2000] ).
To allow the plaintiff to utilize her own act of filing a law suit against the arbitrator to be a basis to remove the arbitrator cannot be judicially sanctioned. To do so would create a standard that if you sue the arbitrator you can disqualify the arbitrator.
The plaintiff contends that the arbitrator refutes the finding that plaintiff received a green card as a result of her victim status under the Federal Violence Against Women Act. However, the arbitrator states in his answer,
I strongly deny the statements written in parag.11 of the complaint. I was involved in the negotiations of the divorce agreement between the parties, and that was not the reason for the divorce between the parties. The main reason was that plaintiff did not want to go for help to make a stable home between the parties. She simply decided to seek a divorce, without any specific reason.
Upon information and belief, the plaintiff got divorced from her first husband for the reason she claimed, that he is impotent' and her first ex husband remarried and has a full household of children.
The arbitrator's response to the verified complaint expresses his view as to the reason for the party's divorce based upon his knowledge and understanding. Although counsel for the plaintiff states that”[t]he relevance of her victimhood status has no bearing on any potential arbitration case or controversy per se ... yet Fried chooses to strongly' dispute it.”, the court notes that the arbitrator is, at this time, a self represented litigant responding to a summons and complaint. Plaintiff' lawsuit against the arbitrator required a response. The arbitrator's statements in the answer do not rise to the level required to prove bias sufficient to warrant the removal of an arbitrator.
The plaintiff further argues that the arbitrator's understanding of the circumstances surrounding her previous divorce which she posits are irrelevant to the underlying complaint, are slanderous. Plaintiff's counsel avers that this “... shows the extent to which the arbitrator will go to besmirch Plaintiff's reputation”. The Arbitrator's's statements regarding his understanding of the causes of the plaintiff's two (2) divorces does not rise to a level sufficient to prove bias on the part of the arbitrator and may simply be a defense for the arbitrator's which raises the issue of credibility of the plaintiff. This Court notes that a court may not intervene during an arbitration proceeding simply because it may disagree with an arbitrator's understanding of the overall matter. To do so “... would entail the kind of inapt flirtation with the merits, or ... inappropriate use of the judicial scalpel to split the hairs that mark the perimeters of the contractual provisions' that [h]istory, legislation, and experience,” not to mention our case law, dictate that we refrain from'.” (New York City Transit Authority v. Transport Workers Union of America, 14 NY3d 119, 924 N.E.2d 797 [2010]; quoting Matter of Board of Educ. Of Watertown City School Dist., 93 N.Y.2d 132, 710 N.E.2d 1064 [1999] )
The plaintiff points to the relationship between the arbitrator and the mediator, father and daughter, as evidence of the arbitrator's partiality. Plaintiff does not allege that she was unaware of the relationship between the arbitrator and the mediator, nor has she demonstrated that she was harmed by this relationship or that, within the parameters of the arbitration to which the parties mutually agreed, the appointment of a mediator and communications between the mediator and arbitrator are in violation of the parties' agreement. The relationship is one between the arbitrator and the mediator, not the arbitrator and a party to the arbitration. There is no appearance of bias upon the basis of the arbitrator's communication with the mediator in this matter.
Plaintiff posits that she is fearful that the arbitrator will be vengeful in future proceedings since she commenced an civil action against him. Plaintiff presumes that the arbitrator will render an improper judgment, however, the arbitration has yet to take place and, therefore, no ruling has been issued. “The possibility that the arbitrator, in making his award, might exceed his authority under the collective bargaining agreement, or that the award might be contrary to the public policy of this State, is not sufficient to compel judicial intervention into the arbitration process at this point (cf. Matter of Port Washington Union Free School Dist. v. Port Washington Teachers Assn., 45 N.Y.2d 411).” ( Matter of Arbitration between Mahopac Central School District and Mahopac Teachers Association, 65 A.D.2d 593, 409 N.Y.S.2d 261 [2 Dept., 1978] ).
In his answer, the arbitrator strongly denies being called a corrupt and contemptible individual who calls himself a “Rabbi”. He further refutes plaintiff allegation in her verified complaint that the defendant herein was allowed visitation with the parties' children. The arbitrator further denies the plaintiff's allegation that he had a conversation with a third party, as alleged in plaintiff's civil verified complaint suggesting that the arbitrator stated that plaintiff will not receive child support if the defendant does not have access with the children. In response to plaintiff's verified complaint allegation that she made numerous written requests to the arbitrator to address the issue of child support, the arbitrator contends that he repeatedly attempted to have plaintiff appear to address the issues of child support and visitation but that plaintiff refused because she did not want the issue of visitation adjudicated.
This court notes that plaintiff's separate civil verified complaint at paragraph 56 states that “[i]n proceedings before Judge Sunshine of the Supreme Court, the alleged arbitration proceedings between Ms. Weisz, Mr. Weisz and Fried were permanently stayed because they were never properly commenced and Fried's attempt to arbitrate custody and visitation through forensics is against policy to arbitrate child custody and visitation [sic] and was permanently stayed.” It is well settled that the issues of custody and visitation are not subject to arbitration. “Disputes concerning child custody and visitation are not subject to arbitration as the court's role as parens patriae must not be usurped' (Glauber v. Glauber, 192 A.D.2d 94, 98 [1993];see Lipsius v. Lipsius, 250 A.D.2d 820 [1998];Nestel v. Nestel, 38 A.D.2d 942 [1972] ).” (Hirsch v. Hirsch, 4 AD3d 451, 774 N.Y.S.2d 48 [2 Dept., 2004; see also Schechter v. Schechter, 63 AD3d 817, 881 N.Y.S.2d 151 [2 Dept., 2009]; Wieder v. Wieder, 105 AD3d 948, 2013 N.Y. Slip Op 02568 [2 Dept., 2013] ). However, is also well settled that “[a]ll financial issues, including the amount of child support, may be determined by an arbitration subject to vacatur on public policy grounds such as failure to comply with the Child Support Standards Act and not being in the best interests of the parties' children ( see Berg v. Berg, 85 AD3d 952, 953;Frieden v. Frieden, 22 AD3d 634, 635;Matter of Hirsch v. Hirsch, 4 AD3d 451, 452–453).” ( Wieder v. Wieder, ––– AD3d ––––, supra). It must be noted that this Court never stayed the entire arbitration. In the decision dated December 24, 2012, this Court ordered, in part,
ORDERED and ADJUDGED, that Plaintiff's
motion to stay arbitration of custody and visitation is GRANTED as it is against public policy; and it is further ...
ORDERED and ADJUDGED, that an attorney for the children will not be appointed at this time to participate in any arbitration as the issue of custody is moot; and it is further
ORDERED and ADJUDGED, all money judgments for child support, medical expenses, tuition ans school expense arrears are DENIED as premature without prejudice and leave to renew after the arbitrator has issued an award or of there is a failure of the arbitrator to act; and it is further
ORDERED and ADJUDGED, that requests for spousal support, medical expenses and involvement of the child support collection unit are DENIED as premature without prejudice and leave to renew after the is an arbitration award or failure of the arbitrator to act; and it is further ...
ORDERED and ADJUDGED, that plaintiff's motion for an order Counsel Fees for support enforcement is DENIED as premature without prejudice. Any counsel fees on account of custody and visitation may be heard separately and it is further....
ORDERED and ADJUDGED, that any demand for arbitration must be properly made in writing pursuant to the CPLR; and it is further
ORDERED and ADJUDGED, that if the arbitrator fails to promptly act in a timely fashion, the Court will entertain an application to compel arbitration or vacate the support provisions of the agreement and entertain a support application de novo.
The fact and circumstances herein, do not rise, at this time, to the level that a real possibility exists that injustice will result. Here, after applying the high standard in this state of review for the disqualification of an arbitrator, this Court finds that the arbitration process must go forward in compliance with their stipulation of settlement. This Court will not permit a party to fabricate a basis for disqualification by commencing a suit against an arbitrator. To do so would create a situation contrary to the case law. For a litigant to attempt to condition child support and parental access is against public policy and furthermore, ignores the children's rights to access to both parents ( see Gerald D.V. Lucille S., 188 A.D.2d 650, 591 N.Y.S.2d 528 [2 Dept, 1992] [“... visitation is a joint right of a noncustodial parent and the child [citation omitted], and the best interests of the child lies in his being nurtured and guided by both parents”] ). Both child support and parental access are of grave importance, however, as indicated above, the issue of visitation is not subject to arbitration. This Court notes that there is no application before the court related to visitation, at this time.
Upon the facts and circumstances herein, plaintiff's motion for leave to renew is denied. The new facts presented, although not offered on the prior motion would not have changed the prior determination ( seeCPLR 2221[e]; see also Brabham v. City of New York, 105 AD3d 881, 2013 N.Y. Slip Op 02526 [2 Dept., 2013]; citing Arthur J. Gallagher & Co. v. Marchese, 96 AD3d 791, 792;Behar v. Quaker Ridge Golf Club, Inc., 95 AD3d 808, 809;Peycke v. Newport Media Acquisition II, Inc., 40 AD3d 722).
The issue of child support shall be adjudicated immediately in accordance with the parties' contractual obligation to arbitrate. It would be inappropriate to find that the parties' designated arbitrator's alleged conduct in this case warrants intervention by the court prior to the arbitration commencing. The parties' are directed to appear for arbitration forthwith. The arbitrator shall notify the parties' of the location of the arbitration by written notice no later than May 6, 2013.
Poor Person Status
Pursuant to CPLR section 1101 entitled “[m]otion for permission to proceed as a poor person; affidavit; certificate; notice; waiver of fee; when motion not required”,
(a) Motion; affidavit. Upon motion of any person, the court in which an action is triable, or to which an appeal has been or will be taken, may grant permission to proceed as a poor person. Where a motion for leave to appeal as a poor person is brought to the court in which an appeal has been or will be taken, such court shall hear such motion on the merits and shall not remand such motion to the trial court for consideration. The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses. An executor, administrator or other representative may move for permission on behalf of a deceased, infant or incompetent poor person.
In the case at bar, plaintiff contends that the defendant fails to regularly meet his contractual obligation for child support. She states that the children are starving and unhealthy and fail to receive the necessary medical care because the father does not provide child support. She affirms that her monthly income is $1,650.00; currently maintains a bank account with a balance in the amount of $664.37; does not own property and has no assets. Defendant does not oppose the application. At oral argument, the plaintiff conceded that the defendant, at present, is paying child support. Under the facts and circumstances here, plaintiff's application to prosecute this action as a poor person is granted.
Counsel Fees
Defendant's application for counsel fees in his affirmation in opposition to plaintiff's order to show cause, for what he calls plaintiff's frivolous application, is denied. The Appellate Division, Second Department in New York State Div. of Human Rights v. Oceanside Cove II Apartment Corp (39 AD3d 608835 N.Y.S.2d 246 [2 Dept., 2007] ) held that “[s]ince the plaintiff merely requested this relief in its opposition papers, and did not make a motion on notice as defined in CPLR 2211, the plaintiff is not entitled to appeal as of right from the order denying its request to extend the time for service of the summons and complaint ( seeCPLR 5701[a][2]; Thompson v. 76 Corp., 37 AD3d 450, 830 N.Y.S.2d 564;Siegel, N.Y. Prac. § 526, at 897).” In consideration of the facts and circumstanced presented herein, plaintiff's application is denied.
Conclusion
Plaintiff's motions for leave to renew and reargue are denied. Plaintiff application to prosecute this matter as a poor person is granted. A separate order for poor person status shall be entered simultaneously herein. The control date of May 17, 2013, is vacated.
The foregoing constitutes the decision and order of this Court.