Jewell v Iyer

[*1] Jewell v Iyer 2010 NY Slip Op 50044(U) [26 Misc 3d 131(A)] Decided on January 14, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570177/09.

R. Kenneth Jewell, Petitioner-Appellant, - -

against

Sunita Iyer, Respondent-Respondent.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated June 19, 2008, which, among other things, denied his motion for a default judgment vacating an arbitration award, granted respondent's cross motion to dismiss the petition for lack of personal jurisdiction, and confirmed the award.

Per Curiam.

Order (Arthur F. Engoron, J.), dated June 19, 2008, affirmed, with $10 costs.
Petitioner, an attorney, represented respondent in a matrimonial action. A dispute arose regarding petitioner's fee, and the parties arbitrated that dispute pursuant to part 137 of the Rules of the Chief Administrator of the Courts. After the arbitrators rendered their award, petitioner commenced a special proceeding in Civil Court seeking, among other things, a trial de novo of the fee dispute (see 22 NYCRR 137.8). Petitioner, however, failed to serve respondent with the notice of petition and petition in the manner directed by the court in the order to show cause. Therefore, personal jurisdiction over respondent was never obtained in this proceeding, since "the mode of service provided for in the order to show cause is jurisdictional in nature and must be literally followed" (Goldmark v Keystone & Grading Corp., 226 AD2d 143, 144 [1996]; see Ruine v Hines, 57 AD3d 369 [2009]). Nor was personal jurisdiction obtained over respondent when petitioner provided respondent with a copy of the notice of petition and petition during a court appearance in a related action (see CPLR 2103[a]; Miller v Bank of New York (Delaware), 226 AD2d 507 [1996]), and the fact that respondent received actual notice of the within action is of "no moment" (see Macchia v Russo, 67 NY2d 592, 595 [1986]).

In any event, petitioner is not entitled to a trial de novo, since he is bound by the language of the governing written retainer agreement, which he prepared, that states that "the final determination of the arbitrator[s] shall be binding upon both" parties (see 22 NYCRR 137.2[c]). To the extent the retainer is at all ambiguous with respect to whether petitioner waived his right to a trial de novo, we resolve that ambiguity in favor of respondent (see Jacobson v Sassower, 66 NY2d 991 [1985]).

Where, as here, a motion to vacate an arbitration award is denied, the award must be confirmed (see CPLR 7511[e]; Matter of White v Dept. of Law of State of NY, 184 AD2d 229 [1992]). Therefore, Civil Court properly confirmed the arbitration award.

Petitioner's remaining arguments are without merit or rendered academic in view of our [*2]determination.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: January 14, 2010