NCO Portfolio Mgt. Inc. v Allen
Annotate this CaseDecided on October 25, 2005
Civil Court of the City of New York, Queens County
NCO Portfolio Mgt. Inc. Claimant(s)/, Plaintiff(s)/, Petitioner(s)
against
Yolynda Allen, Defendant(s)/, Respondent(s)
26274/05
Bernice D. Siegal, J.
The petitioner NCO Portfolio Management, Inc., brings the within petition, pursuant to CPLR § 7510, to confirm an arbitration award . Specifically, the petitioner is seeking that the court grant it judgment upon confirmation of an award in the amount of $ 4,289.19 rendered against the respondent Yolynda Allen on November 9, 2004 by arbitrator Ralph Yachnin in an arbitration of a dispute between the parties, arising out of a credit card agreement, submitted before the National Arbitration Forum. The petition and notice of petition were served upon respondent by conspicuous service pursuant to CPLR § 308(4) by affixing copies of same, after the alleged " due diligence" by petitioner's process server, to the door of respondent's residence on August 20, 2005, followed by the requisite mailing to the residence address on August 23, 2005. After the respondent failed to timely appear or answer, the petitioner brought the within petition.
The within petition is dismissed for the reasons set forth below.
A. Service of Process
In the absence of any showing by the process server of an attempt to ascertain the respondent's business address and to effectuate personal service there, the court finds that petitioner failed to establish the " due diligence" required for service under § 308(4) (see Earle -v- Valente, 302 AD 2nd 353 [ 2nd Dept. 2003]; Gurevitch -v- Goodman, 269 AD2nd 355 [ 2nd Dept. 2000]). Such failure by the petitioner is especially inexcusable in a dispute, such as the one at bar, arising out of a consumer credit litigation- e.g., a credit cardholder agreement wherein the cardholder's social security number and employment information are customarily required to be provided before credit is extended.
B. Statutory Requirements for an Arbitration Award
Additionally, the papers submitted in support of the petition are likewise insufficient. CPLR § 7507 provides, in relevant part, that an arbitration "award shall be in writing, signed and affirmed by the arbitrator making it within the time fixed by the agreement , or, if the time is not fixed, within such time as the court orders" (see Alava-v-C[*2]onsolidated Edison Company of New York, Inc. , 183 AD 2nd 713 [ 2nd Dept. 1992]), such affirmation or jurat being required for its enforcement (see Alava, supra; see also Abreu -v- Nationwide Mutual Insurance Company, 87 AD 2nd 572 [ 2nd Dept. 1982]). In the case at bar, the actual arbitration award has no jurat and is not affirmed. Further, due to the almost total illegibility of the purported unsigned agreement contained in the moving papers, the court cannot ascertain the substance of the arbitration provision, if any, relating to the time frame for the arbitrator's affirmance of the award, nor did petitioner even attempt to provide such information.
In an attempt to cure its failure to submit an affirmed arbitration award, the petitioner submitted a document seeking to affirm the award almost eight months after the date of such award. The court, however, has no way to determine whether such delay is contemplated by the agreement of the parties. In any event, as this document, to wit, an affidavit by the arbitrator who made the award , was signed and notarized in Florida but was not accompanied by a certificate of conformity, such document cannot be considered by the court (CPLR § 2309[c]; Real Property Law § 299-a[1]; see Discover Bank -v- Kagan, 8 Misc 3d 134(A) [App Term, 2nd & 11th Jud. Dist 2005]; Ford Motor Credit Company -v- Prestige Gown Cleaning Service, Inc., 193 Misc 2nd 262 [ Civil Court, Queens Co. 2002]).
Accordingly, the within petition to confirm the arbitration award is dismissed.
_October 25, 2005______________________________
Hon. Bernice D. Siegal
Judge, Civil Court
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