Kalyanaram v New York Inst. of Tech.

Kalyanaram v New York Inst. of Tech. 2012 NY Slip Op 00309 Decided on January 19, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 19, 2012
Andrias, J.P., Sweeny, Moskowitz, Renwick, Freedman, JJ.
6594N 115829/09

[*1]Gurumurthy Kalyanaram, Petitioner-Appellant,

v

New York Institute of Technology, Respondent-Respondent.




Gallet Dreyer & Berkey, LLP, New York (David T. Azrin of
counsel), for appellant.
Fulbright & Jaworski L.L.P., New York (Douglas P. Catalano
of counsel), for respondent.

Appeal from order and judgment (one paper), Supreme Court, New York County (O. Peter Sherwood, J.), entered June 3, 2011 and reentered July 8, 2011, which, after the court had declined to sign petitioner's order to show cause, denied the motion and ordered that judgment be entered against petitioner, unanimously dismissed, without costs, as taken from a nonappealable paper.

There is no right of appeal from an order that does not determine a motion on notice (CPLR 5701[a][2]; see Sholes v Meagher, 100 NY2d 333 [2003]), including an order declining to sign an order to show cause (see Naval v American Arbitration Assn, 83 AD3d 423 [2011]) and a judgment entered upon such an order (see Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73 [2004]). In light of the evident lack of merit to the appeal, we decline to grant leave to appeal.

Petitioner's assertion that disputes as to performance of the remedy provisions of the arbitration award should be determined by the arbitrator is without merit. Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514), and the arbitrator is functus officio, without power to amend or modify the final award (see Matter of Hanover Ins. [*2]Co. v American Intl. Underwriters Ins. Co., 266 AD2d 545 [1999]). In any event, petitioner failed to identify any provision of the final award that was violated by respondent.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2012

CLERK