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Clement Musco, Appellant v. Caterina Mannino

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 11, 2013

CLEMENT MUSCO, APPELLANT,
v.
CATERINA MANNINO, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), dated December 6, 2010.

Musco v Mannino

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order denied plaintiff's motion to vacate or modify an arbitrator's award dismissing the action and, in effect, the judgment entered June 21, 2010, pursuant to the arbitrator's award.

ORDERED that the order is affirmed, without costs.

In this small claims action, the parties agreed to submit the controversy to arbitration. On June 21, 2010, after a hearing, the arbitrator issued an award dismissing the action, and a judgment was entered pursuant thereto. Plaintiff thereafter moved to vacate or modify the arbitrator's award and, in effect, the judgment entered pursuant thereto, on the ground that the arbitrator was not impartial. In an order dated December 6, 2010, the Civil Court denied the motion.

A party seeking to vacate or modify a small claims arbitration award, and the judgment entered pursuant thereto, bears the burden of establishing, by clear and convincing evidence, one of the statutory grounds enumerated in CPLR 7511 (b) or (c) (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]). While plaintiff, in alleging that the arbitrator was impartial, raised one of the grounds for vacatur (CPLR 7511 [b] [ii]), his claim was merely conclusory. As plaintiff failed to establish any of the statutory grounds for vacatur or modification, we conclude that the Civil Court properly denied plaintiff's motion to vacate or modify the arbitrator's award and the judgment entered pursuant thereto.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013

20130211

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