New York Merchants Protective Co., Inc. v Salloom Import & Export Corp.

[*1] New York Merchants Protective Co., Inc. v Salloom Import & Export Corp. 2007 NY Slip Op 52458(U) [18 Misc 3d 129(A)] Decided on December 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-46 Q C.

New York Merchants Protective Co., Inc., Appellant,

against

Salloom Import & Export Corp. and Morurad Salloom a/k/a Mike Salloom, Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered September 28, 2006. The judgment, insofar as appealed from, denied those branches of the petition seeking to confirm the arbitration award as to Morurad Salloom a/k/a Mike Salloom and to confirm the award of attorney's fees.

Judgment, insofar as appealed from, reversed without costs, and those branches of the petition seeking to confirm the arbitration award as to Morurad Salloom a/k/a Mike Salloom and to confirm the award of attorney's fees granted.

Petitioner commenced the instant special proceeding to confirm an arbitration award. The arbitrator issued an award in favor of petitioner on default against
respondents jointly and severally in the sum of $4,970.40, with interest from October 1, 2003, plus attorney's fees in the sum of $1,500. The petition was unopposed. The court modified the award by confirming it as to Salloom Import & Export Corp. and, citing CPLR 7511 (c) (2), denying the petition to confirm the award as to Morurad Salloom, noting that although he had signed the subject alarm lease, containing the arbitration clause, as a guarantor, he was not a party to the agreement to arbitrate the dispute. Further, the court modified the award by denying attorney's fees to petitioner on the ground that the lease provided for legal fees only if petitioner prevailed in litigation, not as a result of arbitration. Petitioner appeals from that part of the judgment which denied the branches of the petition seeking to confirm the award as to Mr. [*2]Salloom and to confirm the award of attorney's fees.

A court may only review the validity of an arbitration agreement in the context of an application to compel or stay arbitration pursuant to CPLR 7503, or an application to vacate an award pursuant to CPLR 7511 (b). Respondent Morurad Salloom failed to seek review of the validity of the arbitration agreement as to him under either section. "Once a case is referred to an arbitrator, all questions of fact and of law are within the judicially unreviewable purview of the arbitrator'" (Matter of Raisler Corp. [New York City Hous. Auth.], 32 NY2d 274, 282 [1973], quoting Matter of S & W Fine Foods [Office Empls. Intl. Union, Local 153, AFL-CIO, 8 AD2d 130, 131 [1959], affd 7 NY2d 1018 [1960]; cf. CPLR 7511). Accordingly, we reverse the judgment, insofar as appealed from, and grant the petition to confirm the arbitration award.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 27, 2007