Williams v Whitiker

[*1] Williams v Whitiker 2007 NY Slip Op 51274(U) [16 Misc 3d 128(A)] Decided on June 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-950 K C.

Beverly A. Williams, Respondent,

against

Brenda Whitiker, d/b/a SISTER BRENDA'S MINISTRIES, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 27, 2006. The order denied defendant's motion to vacate a judgment.

Appeal dismissed.

The court below properly found that defendant's motion, although denominated as one to vacate the judgment pursuant to CPLR 5015 (a) (3), was nothing more than a motion for reargument, the denial of which is not appealable.

Defendant's motion — brought after an unsuccessful attempt to vacate the arbitrator's award — reiterated arguments asserted in the previous motion and, thus, was properly considered as a motion for reargument (see Kaminer v Wexler, __ AD3d __, 2007 NY Slip Op 04229 [May 17, 2007]). Defendant's belated submission of copies of checks marked paid was not based on new facts unavailable to defendant on the prior motion, and defendant offered no explanation for not submitting the checks earlier. Since defendant merely argued issues previously decided, her motion was not proper under CPLR 5015 (a) (3). Instead, defendant's only recourse would have been to file a timely appeal from the denial of defendant's first motion to vacate the arbitrator's award (see Bedford Gardens Co. v Ausch, 251 AD2d 276, 277 [1998]). [*2]

Even assuming that defendant's motion was proper under CPLR 5015 (a) (3), we cannot agree that the motion was supported by "substantial evidence of fraud." In support of the motion, defendant submitted copies of checks along with an affirmation from an attorney from defense counsel's office, stating that he was present at oral argument on the first motion, and that the claimant had acknowledged receiving only one check. These belated submissions can hardly be considered evidence of anything, let alone evidence of fraud perpetrated on the original arbitrator. Nothing in the record demonstrates that the checks, which were presented for the first time on defendant's motion to vacate the judgment, were ever brought to the arbitrator's attention. Moreover, to conclude that "in all probability" claimant committed a fraud on the arbitrator based on an off-the-record statement allegedly made during a subsequent motion, requires impermissible speculation and undermines the finality and deference accorded to small claims arbitration awards. CPLR 5015 (a) (3) is not intended to circumvent the binding nature of an arbitrator's award nor is it intended to afford an unsuccessful party repeated opportunities to argue issues previously decided.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 21, 2007