Hemlall v Ngo (2009 NY Slip Op 52054(U))

Hemlall v Ngo

2009 NY Slip Op 52054(U) [25 Misc 3d 126(A)]

Decided on October 8, 2009

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

Robert Hemlall, Appellant,

against

Johnathan Ngo and THICAM TU NGO, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered August 28, 2008. The order denied plaintiff's motion to vacate or modify an arbitrator's award and restore the case to the calendar.

Plaintiff commenced this small claims action seeking to recover for property damage allegedly sustained in an automobile accident. The parties thereafter submitted the matter to arbitration (see Hildebrand v Nowak Allied Contrs., Inc., 24 Misc 3d 132[A], 2009 NY Slip Op 51376[U] [App Term, 9th & 10th Jud Dists 2009]; Heinz v Serban, 3 Misc 3d 134[A], 2004 NY Slip Op 50453[U] [App Term, 9th & 10th Jud Dists 2004]). Following the arbitrator's award in favor of plaintiff in the sum of $1,362, plaintiff moved to vacate or modify the award upon the ground, set forth in CPLR 7511 (c) (1), that there was a miscalculation of figures. Plaintiff asserted, inter alia, that the award should have been for the sum of $1,862, or approximately 50% of the amount sought by him, $3,723.48, since defense counsel had previously acknowledged that defendants were 50% liable for the damages. In opposition to the motion, defense counsel denied that there had been an agreement that defendants were 50% liable and noted, inter alia, that defendants had testified that plaintiff moved into their lane of traffic, causing the contact between the vehicles, and, thus, that the accident was due solely to plaintiff's negligence.

We are of the view that plaintiff's motion was properly denied since a mathematical error in the computation of damages was not evident from the face of the award (see Matter of City of Troy [Village of Menands], 48 AD2d 733 [1975]; 23A Carmody-Wait 2d § 141:229, at 66). "[C]ourts will not second-guess the factual findings or the legal conclusions of the arbitrator" (Matter of Sprinzen [Nomberg], 46 NY2d 623, 632 [1979]; Matter of Healthcare Resources Intl. [Blue Cross & Blue Shield of W. NY], 258 AD2d 962 [1999]).