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Michael Poelker, Appellant v. Eric A. Ocasio

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


March 20, 2013

MICHAEL POELKER, APPELLANT,
v.
ERIC A. OCASIO, RESPONDENT,
AND JENNIFER HAIRSTON, DEFENDANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered August 31, 2011.

Poelker v Ocasio

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2013

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

The order denied plaintiff's motion to, in effect, vacate so much of an arbitrator's award as dismissed the action insofar as asserted against defendant Eric A. Ocasio and as awarded that defendant the principal sum of $3,600 on his counterclaim.

ORDERED that the order is affirmed, without costs.

In this small claims action, the parties signed a written consent form to submit the matter to arbitration. After the arbitration proceeding was held, the arbitrator dismissed plaintiff's action against both defendants and awarded defendant Eric A. Ocasio the principal sum of $3,600 on his counterclaim. A judgment was entered on June 9, 2011. Plaintiff appeals from an order entered August 31, 2011 denying his motion to, in effect, vacate so much of the arbitrator's award as dismissed the action insofar as asserted against defendant Eric A. Ocasio and as awarded that defendant the principal sum of $3,600 on his counterclaim.

A party seeking to vacate an arbitration award and a judgment entered thereon has the burden of demonstrating the existence of a specified statutory ground set forth in CPLR 7511 (b) by clear and convincing evidence (see Boodrham v Foster, 35 Misc 3d 129[A], 2012 NY Slip Op 50627[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Benham v George, 28 Misc 3d 128[A], 2010 NY Slip Op 51190[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff's conclusory allegation regarding the arbitrator's unfairness, without more, was insufficient to establish that the arbitrator was not impartial (CPLR 7511 [b] [1] [ii]). Plaintiff also failed to establish that the arbitrator had exceeded or imperfectly exercised his power (CPLR 7511 [b] [1] [iii]), or that he had not followed prescribed procedures (CPLR 7511 [b] [1] [iv]). As plaintiff did not establish any of the grounds set forth in CPLR 7511 (b), the Civil Court properly denied plaintiff's motion.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: March 20, 2013

20130320

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