MBNA Am. Bank, N.A., Matter of, v Walls

[*1] MBNA Am. Bank, N.A., Matter of, v Walls 2007 NY Slip Op 51077(U) [15 Misc 3d 142(A)] Decided on May 24, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1065 K C.

In the Matter of the Arbitration Between MBNA America Bank, N.A., Appellant,

against

Darryl C. Walls, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), dated April 27, 2006. The order denied petitioner's application to confirm an arbitration award with leave to renew.

Order affirmed without costs.

Although the court below denied the unopposed petition to confirm an arbitrator's award on the ground that no proper affidavit of service of the arbitrator's award had been filed in support of the petition, no such affidavit is required pursuant to CPLR article 75 to confirm the award. All that is required is that the award be "delivered" to the parties in accordance with the terms of their agreement, and sufficient evidence of such delivery was submitted below (CPLR 7507, 7510).

However, the denial of the petition to confirm the award was proper on other grounds. The record reflects that the original notice of arbitration was served by the National Arbitration Forum by overnight courier service to an alleged address of respondent (who has not appeared at any point in these proceedings) in Brooklyn, New York, with the tracking number provided in the affidavit of service. The arbitration clause of the credit agreement in the present matter provides that "The arbitration shall be conducted by the National Arbitration Forum . . . under the Code of Procedure in effect at the time the Claim is filed," and in regard to service of the notice of arbitration, these procedures provide that service by a private service, such as the overnight courier herein, requires "the Delivery Receipt Signed by a person who Received the Documents." As petitioner did not produce such proof of delivery, it failed to establish its entitlement to relief, and the petition was properly denied with leave to renew upon submission of such proof.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: May 24, 2007