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New York Merchants Protective Co., Inc v. Apollon Waterproofing & Restoration Corp

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 11, 2011

NEW YORK MERCHANTS PROTECTIVE CO., INC.,
APPELLANT,
v.
APOLLON WATERPROOFING & RESTORATION CORP.,
RESPONDENT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated July 14, 2009.

New York Merchants Protective Co., Inc. v Apollon Waterproofing & Restoration Corp.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 11, 2011

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, 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 stated in New York Merchants Protective Co., Inc. v Rojas (___ Misc 3d ___, 2011 NY Slip Op ___ [App Term, 9th & 10th Jud Dists 2011]), we find that respondent did not knowingly agree to commence a court proceeding by a method of service other than that required by the CPLR. Thus, the District Court correctly found that service of the notice of petition and petition was improper, and denied the petition to confirm the arbitration award and dismissed the proceeding.

Accordingly, the order is affirmed.

Molia and Iannacci, JJ., concur.

Tanenbaum, J.P., concurs in a separate memorandum.

Tanenbaum, J.P., concurs in the following memorandum:

I concur for the reasons stated in my concurrence in New York Merchants Protective Co., Inc. v Rojas (___ Misc 3d ___, 2011 NY Slip Op ___ [App Term, 9th & 10th Jud Dists 2011]).

Decision Date: April 11, 2011

20110411

© 1992-2011 VersusLaw Inc.



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