Matter of Kunju v MTA

Matter of Matter of Kunju v MTA 2012 NY Slip Op 02949 Decided on April 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 April 19, 2012
Gonzalez, P.J., Saxe, Sweeny, Acosta, Renwick, JJ.
7431 260731/10

[*1]In re Yohannan Kunju, Petitioner-Appellant-Respondent,

v

MTA, et al., Respondents-Respondents-Appellants.




Barry D. Haberman, New City, for appellant-respondent.
Martin B. Schnabel, New York (Mariel A. Thompson of
counsel), for respondents-appellants.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered on or about June 20, 2011, which denied the petition to vacate an arbitration award, and dismissed the proceeding brought pursuant to CPLR article 75, unanimously affirmed, without costs.

Petitioner's application to vacate the arbitration award was made more than 90 days after the award was delivered to him and is therefore untimely (see CPLR 7511[a]; Werner Engers Co. v NY City Law Dept, 281 AD2d 253, 253 [2001]). In any event, while CPLR article 75 provides a mechanism by which a party may obtain judicial confirmation of an arbitration award, the failure to have an award confirmed is not a ground for vacating the award (see CPLR 7510; CPLR 7511[b][1]).

Petitioner now claims that he seeks vacatur under CPLR 751l(b)(1)(iv). This argument is unavailing as well as unpreserved, since subd (iv) is "failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection." Petitioner participated in the arbitration
without objection as to the procedure employed.

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

ENTERED: APRIL 19, 2012

CLERK