MBNA Am. Bank N.A. v Pacheco

[*1] MBNA Am. Bank N.A. v Pacheco 2006 NY Slip Op 51570(U) [12 Misc 3d 1194(A)] Decided on August 11, 2006 City Court Of Mount Vernon Seiden, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2006
City Court of Mount Vernon

MBNA America Bank N.A., Petitioner,

against

Irma J. Pacheco, Respondent.



1621-06



Wolpoff & Abramson, LLP

Attorneys for Petitioner

300 Canal View Blvd., 3rd Floor

Rochester, New York 14623-2811

Irma J. Pacheco

Respondent pro se

724 South 4th Avenue

Mount Vernon, New York 10550

Adam Seiden, J.

In this action to recover the balance under a credit card agreement, the petitioner moves to confirm an arbitration award pursuant to CPLR §7510. The respondent opposes the motion, contending that she was never served with the notice to arbitrate.

The affidavit of service of the petitioner's arbitration claim indicates that the Notice of Demand to Arbitrate was served upon the respondent at 3444 White Plains Road, Apt. 2E, Bronx, NY on June 30, 2006 at 4:35 p.m.. Service was effected on a "Gloria Doe" identified as the respondent's "roommate." The respondent in this matter contends that she never received the notice to arbitrate because she was no longer living at that address when the notice was delivered there. Moreover, she asserts that she has been married for the last 54 years and has never had a "roommate" other than her husband.

The parties credit card agreement states that any claims under the agreement shall be resolved by binding arbitration conducted by the National Arbitration Forum, pursuant to its Code of Procedure. The petitioner asserts in its Petition that it served respondent pursuant to rule 6B of that Code of Procedure. However, the court finds that the service on respondent was not made in accordance with the Code of Procedure of the National Arbitration Forum, rule 6B. That rule states that in instances where service of the Notice to Arbitrate has been made by delivery to the respondent, there must be a "Delivery receipt Signed by a person who Received the Documents" or a "Written acknowledgment of Delivery by Respondent or a Representative."

Since there has been no signed receipt of delivery submitted by the petitioner as required by the Code of Procedure of the National Arbitration Forum, the petitioner's motion to confirm the arbitration award must be denied for lack of proper service upon the respondent (see Farber v Himmell, 28 AD3d 762 (2d Dept 2006)).

Petitioner's motion to confirm the arbitration award is denied, with leave to conduct a new arbitration proceeding following proper service on the respondent.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Petition and Verified Petition dated January 20, 2006; Exh. A-C. Respondent's Answer dated June [*2]12, 2006.

Dated:August 11, 2006

Mount Vernon, New York

_______________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

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