Ross v Nwachukwu

[*1] Ross v Nwachukwu 2009 NY Slip Op 51730(U) [24 Misc 3d 142(A)] Decided on July 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-775 K C.

Vanessa Ross, Respondent,

against

Grace C. Nwachukwu, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 10, 2007. The order denied defendant's motion to vacate an arbitrator's award and the judgment entered pursuant thereto.

Order affirmed without costs.

Plaintiff retained defendant, an attorney, to represent her in a custody suit brought by her child's father. After that case was discontinued, plaintiff filed a complaint with the Grievance Committee for the Second and Eleventh Judicial Districts, in which she sought a refund of the payment she had made to defendant, apparently alleging that defendant had provided defective legal services. Although the record does not contain the Committee's conclusions, which are confidential (Judiciary Law § 90 [10]), defendant alleges that the Grievance Committee did not recommend a refund of plaintiff's legal fees.

Plaintiff then commenced the instant small claims action, seeking to recover the legal fees on the ground that the legal services defendant had provided were defective — apparently the same claim she had unsuccessfully asserted before the Grievance Committee. The parties submitted the matter to arbitration. After the arbitration hearing, the arbitrator awarded judgment to plaintiff in the principal sum of $850. Defendant then moved to vacate the arbitrator's award and the judgment entered pursuant thereto, alleging that the arbitrator had refused to consider material evidence and had exceeded his power. The Civil Court denied defendant's motion, and this appeal ensued.

Defendant's first argument, that the Small Claims Part of the Civil Court lacked jurisdiction to consider plaintiff's claim of defective legal services because she had previously made the same complaint, without success, to the Grievance Committee, is unfounded. Rather, the determination of a grievance committee, which is summary and is made without the benefit [*2]of an adversary hearing, has no res judicata and/or collateral estoppel effect (Klejmont v DeProspo, Petrizzio, Longo & Bartlett, 195 Misc 2d 538 [App Term, 9th & 10th Jud Dists 2002]; accord Bennardo v Equitable Land Servs.,
244 AD2d 304 [1997]). Thus, the determination of the Grievance Committee did not preclude plaintiff from commencing this small claims action.

We likewise reject defendant's second argument, that plaintiff sought "restitution" of attorney's fees and that the Small Claims Part of the Civil Court lacked jurisdiction to grant such equitable remedy. CCA 207 confers jurisdiction on the Civil Court to hear small claims, which are defined to include "any cause of action for money only not in excess of five thousand dollars exclusive of interest and costs . . ." (CCA 1801). So long as only monetary relief is sought, the Small Claims Part has the authority to award a refund of legal fees previously paid (see Matter of Bakker, 217 AD2d 363 [1995]).

Finally, defendant contends that the Civil Court erred in refusing to vacate the arbitrator's award pursuant to CPLR 7511 (b) (iii) because the arbitrator failed to consider pertinent and substantial evidence. A party seeking vacatur of an arbitrator's award bears the burden of establishing a statutory violation of CPLR 7511 (b) by clear and convincing evidence (see Retina Assoc. of L.I. v Rosberger, 45 AD3d 690 [2007]; see also Matter of Goltz [Ripps], 88 AD2d 1052 [1982]). In the case at bar, there is no record of the evidence that was before the arbitrator. Matters which are dehors the record are beyond this court's power to review (see Chimarios v Duhl, 152 AD2d 508 [1989]); the lack of a record alone is fatal to defendant's attempt to carry her burden of demonstrating the existence of a statutory basis for upsetting the award and the
judgment entered pursuant thereto (see Vick v Albert, 34 AD3d 331 [2006]; Matter of Military Contrs. [Marrano/Marc Equity Corp.], 2 AD3d 1382 [2003]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009