Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 11, 2008.
D & w Cent. Sta. Fire Alarm Co., Inc. v Culture Club of NYC, LLC
Decided on April 11, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., RIOS and STEINHARDT, JJ
The order denied a petition to confirm an arbitration award and dismissed the proceeding.
ORDERED that the order is affirmed, without costs.
For the reasons set forth in New York Merchants Protective Co., Inc. v Mima's Kitchen, Inc. (__ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-1612 Q C], decided herewith), the order is affirmed.
We note that, unlike in New York Merchants Protective Co., Inc. v Mima's Kitchen, Inc. (__ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-1612 Q C]), petitioner asserts in his brief on appeal in this case that respondent filed an answer at arbitration and paid the requisite filing fee," but failed to appear at the arbitration hearing. Petitioner's assertion that an answer was filed is dehors the record because, in the attached arbitration decision and award, it does not state whether an answer was filed, but only that notwithstanding such notice [of the hearing], the Respondent failed to appear at the Hearing."
Rios and Steinhardt, JJ., concur.
Weston, J.P., dissents in a separate memorandum.
Weston, J.P., dissents and votes to reverse the order and grant petitioner's application to confirm the arbitration ...