Charlemagne v John Campbell, PC

[*1] Charlemagne v John Campbell, PC 2017 NY Slip Op 51647(U) Decided on December 4, 2017 City Court Of Mount Vernon Armstrong, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2017
City Court of Mount Vernon

Erby Charlemagne, Plaintiff,

against

John Campbell, PC and TILEM & CAMPBELL, PC, Defendants.



2721-12



Erby Charlemagne.

Pro-se Plaintiff

John Campbell, Tilem & Campbell, P.C.

Defendants

188 East Post Rd. 3d Floor

White Plains, New York 10601
Adrian N. Armstrong, J.

Plaintiff commenced the instant small claims action against the defendants' law firms for inadequate legal services rendered pursuant to a retainer agreement. The parties first appeared in this court on October 24, 2012 and the plaintiff agreed to withdraw the action. Defendants also agreed to continue in its representation of the plaintiff pursuant to their agreement contingent upon the plaintiff paying the remaining balance of one thousand dollars ($1,000.00) due defendants. This stipulation was placed on the record in open court.

In May of 2014, plaintiff's motion to restore the case to the calendar was granted. On June 20, 2014, both sides appeared and agreed to submit the matter to arbitration and signed a written consent form, which advised that "the arbitration award is final and binding and that no appeal is permitted." After the hearing, the arbitrator found in favor of defendant and dismissed the plaintiff's claim.

Plaintiff now moves, by Order to Show Cause, more than three years later, to vacate the arbitrator's decision dismissing his claim. Defendants were served with the [*2]Order to Show Cause, but have not appeared nor submitted written opposition.

A party seeking to vacate or modify an arbitration award and a judgment entered thereon has the burden of demonstrating the existence of specified statutory grounds by clear and convincing evidence (see Povia v Furfero, 15 Misc 3d 134[A], 2007 NY Slip Op 50723[U][App Term, 9th and 10th Jud Dists 2007]).

In plaintiff's three page hand-written affidavit, he primarily complains about the purported ineffectiveness of the defendants in representing him in a prior criminal matter which resulted in his conviction and sentence to a term of three years probation. Plaintiff briefly mentions in his affidavit, without specificity, that the arbitrator's decision was racially motivated.

In the case at bar, there is no record of the evidence that was before the arbitrator. However, so far as can be ascertained from the existing record, any purported errors by the arbitrator do not constitute grounds for vacatur. The record fails to support plaintiff's allegations that the small claims arbitrator was not impartial (CPLR 7511 [b] [1] [ii] or that he exceeded or imperfectly exercised his power (CPLR 7511 [b] [1] [iii]). Because plaintiff has not established these or any of the other grounds for vacatur enumerated under CPLR 7511(b), his motion is denied in its entirety

This constitutes the Decision and Order of this Court.

Dated: December 4, 2017

Mount Vernon, New York

____________________________

HON. ADRIAN N. ARMSTRONG