Rosendale v. Spagnola's Plumbing & Heating, Inc.

Appellate Division of the Supreme Court of New York

Rosendale v. Spagnola's Plumbing & Heating, Inc.

187 A.D.2d 854, 589 N.Y.S.2d 703, 1992 N.Y. App. Div. LEXIS 12853

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

DecidedNovember 12, 1992

StatusPublished

This text of 187 A.D.2d 854 (Rosendale v. Spagnola's Plumbing & Heating, Inc.) 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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Rosendale v. Spagnola's Plumbing & Heating, Inc., 187 A.D.2d 854, 589 N.Y.S.2d 703, 1992 N.Y. App. Div. LEXIS 12853 (N.Y. Ct. App. 1992).

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Opinion

Appeals (transferred to this Court by order of the Appellate Division, Second Department) (1) from an order of the Supreme Court (Jiudice, J.), entered March 8, 1991 in Dutchess County, which denied plaintiff’s motion to, inter alia, set aside an arbitration award in favor of defendant, and (2) from the judgment entered thereon.

We reject plaintiff’s contention that Supreme Court erred in denying his motion to, inter alia, vacate an arbitration award entered against him. Assuming, arguendo, that the motion was properly made (see, Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 195 n 3), it was without merit. Plaintiff failed to establish that by defaulting his rights were prejudiced by "corruption, fraud or misconduct in procuring the award” (22 NYCRR 28.13 [a] [1]). He also did not establish any of the other conditions for vacatur set forth in 22 NYCRR 28.13 (see, CPLR 3405; Landa, Picard & Weinstein v Ruesch, 102 AD2d 813). His assertions with respect to whether the notice of arbitration was sent to the proper address find no support in the record. To the contrary, the record reveals what, in our view, amounted to a "calculated default” (Matter of Channel Textile Co. v Items, Inc., 156 AD2d 302, 303). Plaintiff’s remaining arguments have been considered and rejected.

Yesawich Jr., J. P., Levine, Crew III, Casey and Harvey, JJ., concur. Ordered that the order and judgment are affirmed, with costs.

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Appeals (transferred to this Court by order of the Appellate Division, Second Department) (1) from an order of the Supreme Court (Jiudice, J.), entered March 8, 1991 in Dutchess County, which denied plaintiff’s motion to, inter alia, set aside an arbitration award in favor of defendant, and (2) from the judgment entered thereon.

We reject plaintiff’s contention that Supreme Court erred in denying his motion to, inter alia, vacate an arbitration award entered against him. Assuming, arguendo, that the motion was properly made (see, Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 195 n 3), it was without merit. Plaintiff failed to establish that by defaulting his rights were prejudiced by "corruption, fraud or misconduct in procuring the award” (22 NYCRR 28.13 [a] [1]). He also did not establish any of the other conditions for vacatur set forth in 22 NYCRR 28.13 (see, CPLR 3405; Landa, Picard & Weinstein v Ruesch, 102 AD2d 813). His assertions with respect to whether the notice of arbitration was sent to the proper address find no support in the record. To the contrary, the record reveals what, in our view, amounted to a "calculated default” (Matter of Channel Textile Co. v Items, Inc., 156 AD2d 302, 303). Plaintiff’s remaining arguments have been considered and rejected.

Yesawich Jr., J. P., Levine, Crew III, Casey and Harvey, JJ., concur. Ordered that the order and judgment are affirmed, with costs.

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187 A.D.2d 854, 589 N.Y.S.2d 703, 1992 N.Y. App. Div. LEXIS 12853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosendale-v-spagnolas-plumbing-heating-inc-nyappdiv-1992.

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