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

[*1] New York Merchants Protective Co., Inc. v Salloom Import & Export Corp. 2006 NY Slip Op 50596(U) Decided on March 10, 2006 Civil Court, Queens County Pineda-Kirwan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 24, 2006; it will not be published in the printed Official Reports.

Decided on March 10, 2006
Civil Court, Queens County

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

against

Salloom Import & Export Corp. and MORURAD SALLOOM a/k/a MIKE SALLOOM, Respondent.



13394/06

Diccia T. Pineda-Kirwan, J.

Upon the foregoing cited papers, it is ordered that the petition to confirm an arbitration award, pursuant to CPLR 7510, is granted, there being no opposition and the award rendered in favor of petitioner against respondent Salloom Import & Export Corp. is confirmed as provided below. The application is denied as to respondent Morurad Salloom a/k/a Mike Salloom.

In the arbitration award, the arbitrator awarded damages with interest, attorney's fees in the amount of $1,500 and costs of the proceeding. While an arbitrator's fee and other expenses incurred in the arbitration may be recovered in the award, attorneys' fees are specifically excluded unless they are expressly provided for in the arbitration agreement. (CPLR 7513; Hirsch v Hirsch, 4 AD3d 451 [2d Dept 2004].) Here, the parties' agreement provides that "[s]hould NYMP prevail in any litigation between the parties, Subscriber shall pay NYMP's legal fees." The agreement also provides that at the option of either party, any dispute between the parties may be resolved by arbitration.

It is noted that the only parties to the contract, and thus the agreement to arbitrate, are petitioner and the corporate respondent. While there is a signature next to the statement that "the undersigned personally guarantees Lessee's performance of this agreement" said statement does not make the individual guarantor a party to the agreement to arbitrate. (CPLR 7511[c][2].)

[*2]

Inasmuch as arbitration is a method of dispute resolution that, by definition, is not litigation (see Blacks Law Dictionary 8th ed.; Sherrill v Grayco Builders, Inc, 64 NY2d 261 [1985]; De Sapio v Kohlmeyer, 35 NY2d 402 [1974]) and inasmuch as petitioner opted to arbitrate and not to litigate, petitioner was not entitled to said attorney's fees and the award is reduced by the amount of the attorney's fees contained therein. (CPLR 7513; Matter of Board of Educ of Dover Union Free School Dist v Dover-Wingdale Teacher's Assn, 61 NY2d 913 [1984].)

Accordingly, it is ordered and adjudged that the petitioner is granted a judgment against respondent Salloom Import & Export Corp in the amount of $5,940.52, plus interest from August 17, 2005, together with the costs and disbursements of this proceeding.

The clerk shall enter judgment pursuant to this order.

Dated:March 10, 2006_____________________________

DICCIA T. PINEDA-KIRWAN

Judge, Civil Court