Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 11, 2008. The order denied a petition to confirm an arbitration award and dismissed the proceeding.

ORDERED that the order is affirmed, without costs.

For the reasons set forth in New York Merchants Protective Co., Inc. v Mima's Kitchen, Inc. (__ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-1612 Q C], decided herewith), the order is affirmed.

We note that, unlike in New York Merchants Protective Co., Inc. v Mima's Kitchen, Inc. (__ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-1612 Q C]), petitioner asserts in his brief on appeal in this case that respondent filed an answer
at arbitration and paid the requisite filing fee," but failed to appear at the arbitration hearing. Petitioner's assertion that an answer was filed is dehors the record because, in the attached arbitration decision and award, it does not state whether an answer was filed, but only that notwithstanding such notice [of the hearing], the Respondent failed to appear at the Hearing."

Rios and Steinhardt, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to reverse the order and grant petitioner's application to confirm the arbitration award in the following memorandum:

For the reasons stated in my dissent in New York Merchants Protective Co., Inc. v Mima's Kitchen, Inc. (___ Misc 3d ___, 2011 NY Slip Op ___ [Appeal No. 2009-1612 Q C], decided herewith), I vote to reverse the order and grant the petition to confirm the arbitration [*2]award. Moreover, I note that the record supports petitioner's unopposed assertion that respondent filed an answer to the arbitration. The arbitrator's reference to respondent's failure to appear, despite notice of the hearing, evinces such a filing, and underscores the reasonableness of the notice given.
Decision Date: April 11, 2011