In re the Arbitration between CACV of Colorado, LLC, & Nowak

Appellate Division of the Supreme Court of New York

In re the Arbitration between CACV of Colorado, LLC, & Nowak

67 A.D.3d 1423, 887 N.Y.S.2d 897

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

DecidedNovember 13, 2009

StatusPublished

This text of 67 A.D.3d 1423 (In re the Arbitration between CACV of Colorado, LLC, & Nowak) 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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In re the Arbitration between CACV of Colorado, LLC, & Nowak, 67 A.D.3d 1423, 887 N.Y.S.2d 897 (N.Y. Ct. App. 2009).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered July 15, 2008 in a proceeding pursuant to CPLR article 75. The order, among other things, granted the petition.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 75 proceeding seeking to confirm an arbitration award. Supreme Court granted the petition and denied respondent’s motion seeking to dismiss the petition for lack of personal jurisdiction. We reverse. “[T]he incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, [petitioner] ha[s] the burden of proving satisfaction of statutory and due process prerequisites” (Matter of Country Side Sand & Gravel Inc. v Town of Pomfret Zoning Bd. of Ap[1424]*1424peals, 57 AD3d 1501, 1502 [2008], quoting Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993]). We conclude that petitioner failed to meet that burden by its conclusory and unsubstantiated assertions that respondent was served with the notice of petition and verified petition. Indeed, petitioner failed to produce any evidence, such as an affidavit of service or a signed acknowledgment of receipt, demonstrating that respondent was properly served with the notice of petition and verified petition pursuant to CPLR 308 or CPLR 312-a. In light of our determination, we do not consider respondent’s remaining contentions. Present—Scudder, P.J., Hurlbutt, Martoche, Centra and Peradotto, JJ.

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Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered July 15, 2008 in a proceeding pursuant to CPLR article 75. The order, among other things, granted the petition.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 75 proceeding seeking to confirm an arbitration award. Supreme Court granted the petition and denied respondent’s motion seeking to dismiss the petition for lack of personal jurisdiction. We reverse. “[T]he incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, [petitioner] ha[s] the burden of proving satisfaction of statutory and due process prerequisites” (Matter of Country Side Sand & Gravel Inc. v Town of Pomfret Zoning Bd. of Ap[1424]*1424peals, 57 AD3d 1501, 1502 [2008], quoting Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993]). We conclude that petitioner failed to meet that burden by its conclusory and unsubstantiated assertions that respondent was served with the notice of petition and verified petition. Indeed, petitioner failed to produce any evidence, such as an affidavit of service or a signed acknowledgment of receipt, demonstrating that respondent was properly served with the notice of petition and verified petition pursuant to CPLR 308 or CPLR 312-a. In light of our determination, we do not consider respondent’s remaining contentions. Present—Scudder, P.J., Hurlbutt, Martoche, Centra and Peradotto, JJ.

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67 A.D.3d 1423, 887 N.Y.S.2d 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-cacv-of-colorado-llc-nowak-nyappdiv-2009.

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