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New York Merchants Protective Co., Inc v. Antique Rugs Studio

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.
ANTIQUE RUGS STUDIO, INC. AND SOL HAKIMIAN, RESPONDENTS.

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

New York Merchants Protective Co., Inc. v Antique Rugs Studio, Inc.

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This opinion is uncorrected and will not be published in the printed Official Reports.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: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.

The order, insofar as appealed from, denied a petition to confirm an arbitration award.

ORDERED that the order, insofar as appealed from, 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 respondents 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. Contrary to petitioner's argument on appeal, the mere appearance of one of the respondents in court, without more, is not sufficient to constitute an appearance (see CPLR 320 [a]) sufficient to waive any objections to the improper service, as there is no indication that said respondent participated in any way in the merits of the proceeding (see e.g. USF & G v Maggiore, 299 AD2d 341 [2002]; 3B Carmody-Wait 2d § 26:25).

Accordingly, the order, insofar as appealed from, 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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