Antoine v Duval

[*1] Antoine v Duval 2009 NY Slip Op 51635(U) [24 Misc 3d 140(A)] Decided on July 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1956 K C.

Cecile Antoine, Appellant,

against

Leo . Duval, Esq., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 15, 2008. The order denied plaintiff's motion to vacate an arbitrator's award and the judgment entered pursuant thereto, and to restore the action to the trial calendar.

Order affirmed without costs.

Plaintiff commenced the instant small claims action to recover amounts that were paid to defendant, an attorney, to provide legal services for plaintiff's son. The parties subsequently submitted the matter for arbitration. Following the arbitration hearing, the arbitrator ruled in favor of defendant. A judgment was entered pursuant to the
arbitrator's award, dismissing the action. Thereafter, plaintiff moved to, inter alia, vacate the arbitrator's award and the judgment entered pursuant thereto, alleging that the arbitrator had exceeded her authority, had shown bias, and had failed properly to consider the written evidence. By order entered October 15, 2008, the Civil Court denied plaintiff's motion.

A party to a small claims arbitration proceeding may move to vacate the arbitrator's award upon one of the grounds set forth in CPLR 7511 (b) (1) (see Matter of Retina Assoc. of L.I., P.C. v Rosberger, 45 AD3d 690 [2007]). The party seeking vacatur has the burden of establishing its right to relief by clear and convincing evidence (Matter of Arab v ATC Jewelers, Inc., 45 AD3d 588 [2007]; Matter of Goltz [Ripps], 88 AD2d 1052 [1982]). Here, plaintiff's allegations of the arbitrator's misconduct, bias, and failure to give proper consideration to the written evidence were wholly conclusory and without the slightest factual support (see Scollar v Cece, 28 AD3d 317 [2006]). Accordingly, the Civil Court properly denied plaintiff's motion.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 24, 2009