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Judith May v. Lorenzo Scotto-D'abusco

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 24, 2011

JUDITH MAY,
APPELLANT,
v.
LORENZO SCOTTO-D'ABUSCO,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered March 24, 2010. The order denied plaintiff's motion to vacate a judgment entered on an arbitrator's award.

May v Scotto-D'Abusco

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

ORDERED that the order is affirmed, without costs.

In this small claims action, the parties agreed to submit the controversy to arbitration. After a hearing, the arbitrator issued an award dismissing plaintiff's cause of action and awarding defendant the principal sum of $3,556 on his counterclaim. A small claims judgment was entered thereon. Plaintiff thereafter moved to vacate the arbitrator's award and the judgment. The Civil Court denied the motion.

A party seeking vacatur of a small claims arbitration award and the judgment entered thereon bears the burden of establishing, by clear and convincing evidence, one of the statutory grounds enumerated in CPLR 7511 (b) (see e.g. Matter of Arab v ATC Jewelers, Inc., 45 AD3d 588 [2007]; Benham v George, 28 Misc 3d 128[A], 2010 NY Slip Op 51190[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). The lack of a record permitting meaningful review is fatal to a party's attempt to carry its burden (see Vick v Albert, 34 AD3d 331 [2006]; Povia v Furfero, 15 Misc 3d 134[A], 2007 NY Slip Op 50723[U] [App Term, 9th & 10th Jud Dists 2007]).

In this case, there is no record of the evidence that was before the arbitrator. In addition, plaintiff failed to establish that the arbitrator was not impartial (CPLR 7511 [b] [1] [ii]), that he exceeded or imperfectly exercised his power (CPLR 7511 [b] [1] [iii]), or that he failed to follow prescribed procedures (CPLR 7511 [b] [1] [iv]). We thus conclude that the Civil Court properly denied plaintiff's motion to vacate the arbitrator's award and the judgment. The order of the Civil Court is, accordingly, affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: May 24, 2011

20110524

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