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Moon v. Tupler

Supreme Court of New York, First Department

October 10, 2013

Heidi Moon, Plaintiff/Petitioner-Respondent-Appellant,
v.
Julie Tupler, Defendant/Respondent-Petitioner-Respondent.

Ferber Chan Essner & Coller, LLP, New York (Robert M. Kaplan of counsel), for appellant.

Law Office of Robert L. Greener, New York (Robert L. Greener of counsel), for respondent.

Tom, J.P., Sweeny, Saxe, Freedman, Clark, JJ.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered October 1, 2012, in favor of defendant, Julie Tupler, in the amount of $8000 with interest, unanimously affirmed, without costs. Appeal from the underlying order, same court and Justice, entered August 17, 2012, which confirmed an award by a special referee and directed the entry of judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The special referee had jurisdiction to hold plaintiff, Heidi Moon, personally liable for "disallowed" expenses, as the court's February 8, 2011 order of reference directed the referee to determine, without limitation (see CPLR 4311), plaintiff's compliance with paragraph two of the order that confirmed the arbitration award. Although the arbitrator awarded "restitution" as a remedy, he explicitly recognized that the calculation of damages was "problematic, " and thus fashioned an award that included paragraph two, the requirement for an accounting.

Article 75, cited by defendant in her petition to confirm the award, applies only to the confirmation of an award by an arbitrator, as opposed to a referee (see CPLR 7510; Mobil Oil Indonesia v Asamera Oil (Indonesia), 43 N.Y.2d 276, 281 [1977]). However, where "a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded" (CPLR 2001; see also Eugene DiLorenzo, Inc. v A.C. Dutton Lbr Co., 67 N.Y.2d 138 [1986]), and there was no prejudice in citing the wrong provision in the application to confirm, as plaintiff was aware of the relief being sought and the failure to cite the proper provision did not result in any action being taken against her that would not have occurred had the proper provision, CPLR 4403, been cited.


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