Denaro v. Cruz

Appellate Division of the Supreme Court of New York

Denaro v. Cruz

115 A.D.3d 742, 981 N.Y.S.2d 585

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 12, 2014

StatusPublished

This text of 115 A.D.3d 742 (Denaro v. Cruz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Denaro v. Cruz, 115 A.D.3d 742, 981 N.Y.S.2d 585 (N.Y. Ct. App. 2014).

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Opinion

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated March 19, 2012, directing the petitioner to refund the sum of $3,837.50 in attorney’s fees to the respondent, the petitioner appeals from an order of the Supreme Court, Nassau County (McCormack, J.), dated September 14, 2012, which denied the petition.

Ordered that the order is affirmed, with costs.

A party seeking to overturn an arbitration award on one or [743]*743more grounds stated in CPLR 7511 (b) (1) bears a “heavy burden” (Matter of Local 295-295C, IUOE v Phoenix Envtl. Servs. Corp., 21 AD3d 901, 901 [2005]; see Matter of Allstate Ins. Co. v Valeri, 221 AD2d 337, 338 [1995]), and must establish a ground for vacatur by clear and convincing evidence (see Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d 1094, 1096 [2011], cert denied 568 US —, 133 S Ct 572 [2012]).

“Partiality of an arbitrator may be shown by actual bias or the appearance of bias from which a conflict of interest may be inferred” (Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d 1439, 1440 [2007] [internal quotation marks omitted]; see Matter of County of Niagara v Bania, 6 AD3d 1223, 1225 [2004]). Here, the petitioner failed to establish that the arbitrator was biased (see Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d at 1440).

The petitioner also failed to satisfy his burden of establishing by clear and convincing evidence that the award should be overturned on the ground that he was prejudiced by a failure on the part of the arbitrator to follow proper procedure (see CPLR 7506 [c]; 7511 [b] [1] [iv]; Matter of Mounier v American Tr. Ins. Co., 36 AD3d 617, 617-618 [2007]). Specifically, the petitioner failed to establish that it was improper for the arbitrator to commence the hearing in his absence (see CPLR 7506 [c]; 22 NYCRR 137.6 [h]; Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d at 1096), and the petitioner’s allegations regarding improprieties at the hearing after he arrived were without merit (see Matter of Mounier v American Tr. Ins. Co., 36 AD3d at 617-618).

Eng, PJ., Balkin, Sgroi and Cohen, JJ., concur.

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In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated March 19, 2012, directing the petitioner to refund the sum of $3,837.50 in attorney’s fees to the respondent, the petitioner appeals from an order of the Supreme Court, Nassau County (McCormack, J.), dated September 14, 2012, which denied the petition.

Ordered that the order is affirmed, with costs.

A party seeking to overturn an arbitration award on one or [743]*743more grounds stated in CPLR 7511 (b) (1) bears a “heavy burden” (Matter of Local 295-295C, IUOE v Phoenix Envtl. Servs. Corp., 21 AD3d 901, 901 [2005]; see Matter of Allstate Ins. Co. v Valeri, 221 AD2d 337, 338 [1995]), and must establish a ground for vacatur by clear and convincing evidence (see Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d 1094, 1096 [2011], cert denied 568 US —, 133 S Ct 572 [2012]).

“Partiality of an arbitrator may be shown by actual bias or the appearance of bias from which a conflict of interest may be inferred” (Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d 1439, 1440 [2007] [internal quotation marks omitted]; see Matter of County of Niagara v Bania, 6 AD3d 1223, 1225 [2004]). Here, the petitioner failed to establish that the arbitrator was biased (see Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d at 1440).

The petitioner also failed to satisfy his burden of establishing by clear and convincing evidence that the award should be overturned on the ground that he was prejudiced by a failure on the part of the arbitrator to follow proper procedure (see CPLR 7506 [c]; 7511 [b] [1] [iv]; Matter of Mounier v American Tr. Ins. Co., 36 AD3d 617, 617-618 [2007]). Specifically, the petitioner failed to establish that it was improper for the arbitrator to commence the hearing in his absence (see CPLR 7506 [c]; 22 NYCRR 137.6 [h]; Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d at 1096), and the petitioner’s allegations regarding improprieties at the hearing after he arrived were without merit (see Matter of Mounier v American Tr. Ins. Co., 36 AD3d at 617-618).

Eng, PJ., Balkin, Sgroi and Cohen, JJ., concur.

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115 A.D.3d 742, 981 N.Y.S.2d 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denaro-v-cruz-nyappdiv-2014.

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