Upon the foregoing cited papers, it is ordered and adjudged that the petition to confirm an arbitration award, pursuant to CPLR 7510 and CCA § 206 [b], and to enter judgment in favor of petitioner against respondent, submitted on default, is denied and the petition is dismissed.

Preliminarily, it is important to note that a party seeking to enforce an arbitration agreement, and "who would require strict compliance" with the provisions of CPLR article 75 must " be held to the fullest standards of practice' [citation omitted.]." (Northern Assur Co of Am v Bollinger, 256 AD2d 580, 581 [2d Dept 1998].)

The issues raised in this proceeding are whether petitioner Davis Alarms, Inc. and respondent Sammy Aftar were parties to a written agreement to arbitrate and whether this court has personal jurisdiction over respondent as the affidavit of service indicates that service was effectuated by first class mail. A review of the procedural requirements in a special proceeding to confirm an arbitration award is necessary to resolve these issues.

New York public policy favors enforcement of contracts for arbitration. (Matter of Smith Barney Shearson Inc v Sacharow, 91 NY2d 39 [1997]; Matter of Waldron [Goddess], 61 NY2d 181 [1984].) Notwithstanding that policy, an agreement to arbitrate must be clear and unambiguous, and not dependent upon subtleties in the agreement. (Id; God's Battalion of Prayer Pentecostal Church, Inc v Miele Assoc, LLP, 6 NY3d 371 [2006]; Crimmins Contr Co v City of New York, 74 NY2d 166 [1989].) A party will not be "compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that the parties expressly agreed to arbitrate their dispute.' [citation omitted]." (Matter of Waldron v Goddess, 61 NY2d 181, 183 supra.)

Arbitration agreements are contracts and must be interpreted under the accepted rules of contract law. (Salvano v Merrill Lynch, Pierce, Fenner & Smith, Inc, 85 NY2d 173 [1995].) Just as parties may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted. (Id.) If the language of the arbitration [*2]agreement is considered ambiguous, it is to be construed most strongly against the drafter and favorably to the non-drafter. (Cowen & Co v Anderson, 76 NY2d 318 [1990].) In this same regard, implicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance. (511 W 232nd Owners Corp v Jennifer Realty Co, 98 NY2d 144 [2002];Van Valkenburgh, Nooger & Neville v Hayden Publ Co, 30 NY2d 34, 45 [1972] cert denied 409 US 875 [1972]; Dalton v Educational Testing Serv, 87 NY2d 384 [1995]; Grad v Roberts, 14 NY2d 70 [1964]).

Pursuant to CPLR article 75, the procedure for confirming an arbitration award and converting the award to a judgment is straightforward. First, a party to a written arbitration agreement sends a demand for arbitration to the other party, which notice is deemed critical to the process, and that demand must meet certain statutory language requirements and must be served in the same manner as a summons or by certified mail, return receipt requested. (CPLR 7503[c]; Blamowski v Munson Transp, Inc, 91 NY2d 190 [1997]; Local 295-295C, IUOE v Phoenix Environmental Services Corp, 21 AD3d 901 [2d Dept 2005].) Once a controversy is submitted to arbitration, the arbitrator must afford the parties the opportunity to present evidence and to cross-examine witnesses and may act only upon proof adduced at a hearing of which due notice has been given to each party personally or by certified mail, return receipt requested. (CPLR 7506 [b] and [c]; Goldfinger v Lisker, 68 NY2d 225 [1986].) An arbitrator is not required to justify his or her award; it must merely be evident that there exists a rational basis for it upon a reading of the record. (Caso v Coffey, 41 NY2d 153 [1976]; Squire v Henschel, 2 AD3d 737 [2d Dept 2003].) Once an arbitration award, containing the statutorily required formalities, is rendered, it must be delivered to the parties in the manner provided in the agreement, or, if the parties' agreement is silent, then by registered or certified mail, return receipt requested. (CPLR 7507; Meisels v Uhr, 79 NY2d 526 [1992].) If the losing party fails to comply with the award, the prevailing party may petition the court for confirmation of the award as so doing is a necessary requisite to entry of a judgment. (CPLR 7510 and 7514.)

"A special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy." (CPLR 7502.) A special proceeding is commenced by filing the notice of petition (CCA 400[1]) and jurisdiction acquired by service of a notice of petition and petition or order to show cause and any supporting affidavits. (CPLR 304 and 403[b]; CCA 400[2]; Star Boxing, Inc. v DaimlerChrysler Motors Corp, 17 AD3d 372 [2d Dept 2005]; INA/Aetna v American Mut. Ins. Cos., 115 AD2d 640 [2d Dept 1985].)

In sum, Civil Practice Law and Rules article 75 requires four separate instances of service: (1) service of the demand for arbitration, (2) service of the notice of hearing, (3) service of the arbitration award, and (4) service of the notice of petition and petition. Establishing that these service requirements are met, together with proof that the application is timely (CPLR 7510), proof of the parties' written arbitration agreement (CPLR 7514; Matter of Waldron v Goddess, 61 NY2d 181, supra) and proof of the arbitrator's award (CPLR 7507), essentially establishes a petitioner's prima facie burden in a special proceeding to confirm arbitration. Courts have generally been lenient as to the method of service of the pre-proceeding notices and service of the arbitration award, [*3]provided there is evidence that actual delivery occurred. (Sassower v Greenspan, Kanarek, Jaffe & Funk, 121 AD2d 549 [2d Dept 1986]; United Brotherhood of Carpenters & Joiners v Giresi, 29 AD2d 768 [2d Dept 1968].)

While the scope of review in a special proceeding to confirm an arbitration award may be narrow, this does not mean, however, that the court's function is "simply to rubber-stamp the award." (Carty v Nationwide Ins Co, 149 AD2d 328 [1st Dept 1989].)

On the date the petition to confirm is noticed to be heard, all papers already served and any additional papers petitioner has relevant to the proceeding, are to be furnished to the court. (CPLR 409[a].) Significantly, the court is then to make a summary determination on all the papers submitted and may make any orders permitted on a motion for summary judgment. (CPLR 409[b]; Port of NY Auth v 62 Cortlandt St Realty Co, 18 NY2d 250 [1966] cert den 685 US 1006 [1967].) There is no alternative procedure in the event a respondent defaults in answering the petition. (cf RPAPL 732;Brusco v Braun, 84 NY2d 674 [1994].) Thus, a petitioner must make a prima facie showing of entitlement to judgment as a matter of law regardless of the appearance or nonappearance of a respondent. (CPLR 409 and 3212; Winegrad v NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v New York, 49 NY2d 557 [1980].) The special proceeding is then terminated by an order directing judgment and determining the rights of the parties. (CPLR 411 and 7514; Solkav Solartechnik, GmbH v Besicorp Group Inc, 91 NY2d 482 [1998].)

Turning to the merits of this case, it is undisputed that the "first application arising out of the arbitrable controversy" is the instant special proceeding to confirm the arbitration award. (CPLR 7510.) The petition is verified by an officer of petitioner corporation, and annexed thereto is an attorney's affirmation, a demand for arbitration with an affidavit of service thereof, a copy of a "Standard Security Equipment Lease," dated August 9, 2005, an arbitration award rendered by "Arbitration Services, Inc." and affirmed by the arbitrator, and a document from Arbitration Services, Inc. that "certifies" that the award was forwarded to respondent. This certification is rejected as to form as it is neither sworn to nor affirmed by a party identified as one competent to do so, and, even if it were, the content of the document, which has a series of boxes, two of which are checked, fails to include sufficient information as to the mailing. (CPLR 2106 and 7507.) Notwithstanding the lack of evidence on this record that the arbitration award was ever sent to respondent, there are other factors which require a denial of the petition.

The parties to the security lease agreement are D&W Central Station Co. as lessor and S & V Textile as the lessee. The contract is signed as S & V Textile under which is the signature of Sammy Aftar. There is no indication on the lease that S & V Textile is a "d/b/a." The signature line for D&W Central Station Co. indicates that it is a "d/b/a" for Davis Alarms, Inc., the petitioner herein.

On these papers, petitioner has failed to meet its burden of showing that petitioner and respondent Sammy Aftar had a "clear, explicit and unequivocal" agreement to arbitrate. (Matter of Waldron [Goddess], 61 NY2d 181, 183 [1984].) The lease agreement names S&V Textile as the [*4]lessee and there are no facts to the contrary provided in the verified petition sufficiently explaining why the terms of the agreement are to be enforced by one other than a party to the agreement. (TNS Holdings, Inc v MKI Sec Corp, 92 NY2d 335 [1998].) If respondent is a "d/b/a" as claimed in the caption, then petitioner needs to submit facts so stating. (CPLR 409[b].)

On the back page of the lease, there are an additional nineteen paragraphs consisting of one hundred and seven lines of type. Halfway down the page is paragraph 18, which provides, in pertinent part:

18. LEGAL ACTION

Any action or dispute between the parties, including issues of arbitrability, shall, at the option of either party, be determined by arbitration administered by the National Arbitration Association, under its Commercial Arbitration Rules. www.natarb.com.

The final paragraph on the page provides that "This agreement constitutes the full understanding of the parties" and states that the laws of New York will govern the agreement.

Also annexed to the petition is a single page excerpt of a document which appears to be the rules of the "NAA" and which contains only rules 33 -38. The verified petition contains insufficient foundational information for this document, stating only that these rules are incorporated by reference into the parties' agreement and can be found at www.arbitr8ors.com. (CPLR 3212 and 4518; People v Kennedy, 68 NY2d 569 [1986].) Rule 33 and Rule 38 provide that service of all notices as well as service of process in any action or proceeding to confirm an award may be made, inter alia, by United States Postal mail.

Had respondent been a proper party, the proceeding nevertheless would be dismissed as petitioner failed to demonstrate that this court obtained personal jurisdiction over him. (CPLR 403 [c]; CCA 400[2]; Star Boxing, Inc. v DaimlerChrysler Motors Corp, 17 AD3d 372, supra; RJ Professional Acupuncturist, PC v Allstate Ins Co, 2007 NY Slip Op 50368U [App Term 2d & 11th Jud Dists.) It is undisputed that the petitioner commenced the proceeding by mailing the petition to respondent.

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314 [1950].) The constitutional predicate of personal jurisdiction involves service of process, which implicates due process requirements of notice and opportunity to defend. (Matter of Beckman v Greentree Sec, 87 NY2d 566, 570 [1996]; Keane v Kamin, 94 NY2d 263 [1999].) Due process requires that the means selected for providing notice are reasonably calculated to apprise affected parties of the pendency of the action and afford them an opportunity to present objections. (Matter of Beckman v Greentree Sec, 87 NY2d 566 supra.) Parties to an agreement are free to employ alternative notice procedures, such as mailing, so long as the procedures meet due process requirements. (Id.) [*5]

Here, the security lease agreement is silent as to an alternative method of service. In fact, the agreement designated that arbitration forum was to be the National Arbitration Association, and would be held pursuant to its rules, found on a website www. natarb.com. According to the arbitration award, the arbitration was administered by a different forum, pursuant to its rules, which, according to the petition, can be found at a wholly different website.

Even assuming that the proper forum administered the arbitration pursuant to proper rules, under the facts of this proceeding, service of the notice of petition and petition by mail only, fails to meet the minimum due process requirements. (Mullane v Central Hanover Bank & Trust Co., 339 US 306, supra.; Matter of Beckman v Greentree Sec, 87 NY2d 566, supra.) Here, the security lease agreement merely refers to rules found on a website, with no alternative method of obtaining those rules, such as providing a mailing address or a telephone number. Petitioner does not aver that respondent was provided with a copy of the rules and the website reference standing alone, in very small typeface, can not be said to be reasonably calculated to give respondent actual notice and an opportunity to be heard. Moreover, there is no evidence or statement from someone with personal knowledge of the facts indicating that actual delivery of the demand for arbitration, award or petition, occurred. (Sassower v Greenspan, Kanarek, Jaffe & Funk, 121 AD2d 549 [2d Dept 1986]; United Brotherhood of Carpenters & Joiners v Giresi, 29 AD2d 768 [ Dept 1968].)

For these reasons, petitioner's argument that respondent waived service pursuant to CPLR 403, is rejected.

This holding is distinguishable from cases where the arbitration agreement itself permits service by mail, or where the rules governing arbitration are provided to the party at the time the agreement is signed, or where such rules are a condition of employment as part of a collective bargaining agreement, or where the rules are part of an industry wide practice such that the party knew or should have known of the rules. (Case v Monroe Community College, 89 NY2d 438 [1997]; Matter of Beckman v Greentree Sec 87 NY2d 566 [1996]; Crawford v Merrill Lynch, Pierce, Fenner & Smith, Inc, 35 NY2d 291 [1974].) Had there been some showing here that the rules were accessible by other means, had been provided to respondent and/or that respondent actually had notice, a different result may have been reached.

It is important to note that neither the arbitrator's award nor the rules promulgated by the National Arbitration Association, in and of themselves, are the subject of this decision. (Caso v Coffey, 41 NY2d 153 [1976]; Matter of Beckman v Greentree Sec, 87 NY2d 566, supra.)

In light petitioner's failure to meet its prima facie burden, the application is denied and the petition is dismissed.

This constitutes the decision and judgment of the court. [*6]

Dated:April 9, 2007_____________________________

DICCIA T. PINEDA-KIRWAN

Judge, Civil Court