Benham v George

[*1] Benham v George 2010 NY Slip Op 51190(U) [28 Misc 3d 128(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-1303 Q C.

Adam V. Benham, Respondent,

against

Richard George, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Devin P. Cohen, J.), entered February 24, 2009. The order denied defendant's motion to vacate a judgment entered against him pursuant to an arbitrator's award.

ORDERED that the order is affirmed without costs.

Plaintiff commenced the instant small claims action to recover a security deposit. The parties agreed to submit the matter to arbitration and signed a written consent form, which advised that "the arbitration award is final and binding and that no appeal is permitted." After the hearing, the arbitrator found in favor of plaintiff in the amount of $965 and a small claims judgment was entered thereon. Subsequently, defendant moved to vacate the judgment and the underlying arbitration award. Defendant appeals from the order denying his motion.

A party seeking to vacate or modify an arbitration award and a judgment entered thereon has the burden of demonstrating the existence of specified statutory grounds by clear and convincing evidence (see Povia v Furfero, 15 Misc 3d 134[A], 2007 NY Slip Op 50723[U] [App Term, 9th & 10th Jud Dists 2007]). Appeal of the denial of such a motion is likewise limited to those grounds, and the lack of a record permitting meaningful review is fatal to a party's attempt to carry its burden (see Vick v Albert, 34 AD3d 331 [2006]; Matter of Military Contrs. [Marrano/Marc Equity Corp.], 2 AD3d 1382 [2003]; Povia, 15 Misc 3d 134[A], 2007 NY Slip Op 50723[U]).

In the case at bar, there is no record of the evidence that was before the arbitrator. However, so far as can be ascertained from the existing record, any purported errors by the arbitrator do not constitute grounds for vacatur. The record fails to support defendant's allegations that the small claims arbitrator was not impartial (CPLR 7511 [b] [1] [ii]) or that he exceeded or imperfectly exercised his power (CPLR 7511 [b] [1] [iii]). Because defendant has not established these or any of the other grounds for vacatur enumerated under CPLR 7511 (b), he is not entitled to restitution under CPLR 5015 (d). His claims for relief under CPLR 5015 (a) (4) or (5) are similarly unavailing, as these provisions cannot be used to circumvent the clear command of CPLR 7511 (b), which limits the grounds for vacatur to those enumerated therein (see Matter of DiNapoli v Peak Automotive, Inc., 34 AD3d 674 [2006]; Meehan v Nassau Community Coll., 242 AD2d 155 [1998]; Karlan Constr. Co. v Burdick Assoc. Owners Corp., 166 AD2d 416, 417 [1990] ["[n]ewly-discovered evidence is not among the grounds upon which [*2]an arbitration award may be vacated under CPLR 7511 (b)"]; Levine v Klein, 70 AD2d 532, 533 [1979] ["The exclusive grounds for vacating [an arbitration] award are set forth in CPLR 7511. . ."]). Accordingly, as the Civil Court properly denied the motion, we affirm the order.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010