Silver v Tribeca

[*1] Silver v Tribeca 2010 NY Slip Op 50124(U) [26 Misc 3d 133(A)] Decided on February 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570780/09.

Robert S. Silver, Plaintiff-Appellant,

against

Antiqueria Tribeca and Peter Feig, Defendants-Respondents.

Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated March 16, 2009, which denied his motion to vacate a small claims arbitration award.

Per Curiam.

Order (Anil C. Singh, J.), dated March 16, 2009, affirmed, without costs.

Plaintiff's motion to vacate the small claims arbitration award was properly denied on this record, which shows that plaintiff signed an arbitration consent form in which he agreed that the award was final and expressly waived his right to appeal (22 NYCRR 208.41[n][2]). Therefore, to the extent plaintiff sought review of the merits of the arbitrator's award, his vacatur motion was properly denied. Plaintiff's claim that defendant procured the award through fraud (see CPLR 7511[b][1][i]) is unavailing, since plaintiff failed to establish that the alleged fraud was not discoverable upon the exercise of due diligence prior to or during the arbitration hearing (see Sorrentino v Weinman, 50 AD3d 305 [2008]; Imgest Fin. Establishment v Shearson Lehman Hutton, Inc., 172 AD2d 291 [1991]). Plaintiff also failed to establish by clear and convincing evidence the existence of fraud (see Caremor, Inc. v Effar (Tiberias) Ltd., 247 AD2d 348 [1998]; Imgest Fin. Establishment, supra), and the mere suspicion of fraud is insufficient to disturb an arbitration award (see State Farm Mut. Auto. Ins. Co. v Rodriguez, 121 AD2d 386 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT
Decision Date: February 02, 2010