Sarasota CCM, Inc. v Guarino

[*1] Sarasota CCM, Inc. v Guarino 2008 NY Slip Op 52385(U) [21 Misc 3d 142(A)] Decided on November 21, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2008-21 Q C.

Sarasota CCM, Inc., Appellant,

against

Joann A. Guarino, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered October 9, 2007. The order denied plaintiff's motion to vacate the dismissal of the action and to confirm the arbitration award.

On the court's own motion, the action is converted to a proceeding pursuant to CPLR article 75.

Order affirmed without costs.

Plaintiff commenced the instant action to enforce an arbitration award. The record indicates that at a pre-trial conference on September 26, 2006, the matter was marked final for trial on January 31, 2007. On the latter date, plaintiff failed to appear, and the action was dismissed. Thereafter, plaintiff moved to vacate the dismissal of the action and to confirm the arbitration award. By order entered October 9, 2007, the court denied plaintiff's motion, and the instant appeal ensued.

The proper procedure to enforce an arbitration award arising out of a written agreement to arbitrate is a special proceeding pursuant to CPLR article 75 (see Scaduto v DT Indus., 266 AD2d 149 [1999]; Polednak v Country-Wide Ins. Co., 153 AD2d 930 [1989]). Consequently, the instant action is converted into a proceeding (see CPLR 103 [b]; Scaduto v DT Indus., 266 AD2d 149 [1999], supra; Polednak v Country-Wide Ins. Co., 153 AD2d 930 [1989], supra).

Since plaintiff failed to demonstrate a reasonable excuse for its failure to appear at trial (see Psomatithis v Transoceanic Cable Ship Co., Inc., 39 AD3d 837 [2007]), the court below did not improvidently exercise its discretion in denying plaintiff's motion.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: November 21, 2008