Petitioner moves to confirm an arbitration award dated October 11, 2012 ("New Award").

Petitioner, which is in the business of selling and purchasing gold, delivered gold to the respondent Best Opal Company and petitioner claims that it was not paid in full. Respondent Robert Hertz ("Hertz") entered into a personal guaranty dated August 11, 2004 ("Guaranty"), guaranteeing the debts of respondent Best Opal Company ("Best Opal"). Paragraph 7 of the Guaranty provides that in the event of any controversies arising out of the Guaranty, "[petitioner] shall have the exclusive and sole discretion to select the forum by which to have the matter heard and resolved in accordance with the Agreement to Arbitrate annexed hereto and made a part of this [Guaranty]." Two additional documents, one of which is titled "Agreement to Arbitrate", are attached to the Guaranty with Hertz's signature indicating that, "[i]t is fully agreed and understood that [petitioner] shall have the exclusive and sole discretion to select the arbitration Bais Din forum and panel of its choice." Plaintiff initiated the arbitration process through a Beth Din.

Petitioner previously moved to confirm an arbitration award, dated June 19, 2011, obtained on default. On February 29, 2012, this court granted the motion, "only to the extent that, [*2]upon respondent [Hertz's] agreement to submit the dispute herein to a different panel of judges of the Bais Din and is waiving any jurisdictional issues raised in opposition, and petitioner's consent, the parties are directed to appear before the Rabbinical Court of Beth Joseph as to be promptly arranged and noticed by petitioner through his attorney."

By letter dated August 6, 2012, sent by certified mail and returned as "unclaimed", the Rabbinical Court of Yeshiva Beth Joseph notified respondents of the new arbitration session scheduled for September 6, 2012 at 11:00 AM. Petitioner's counsel also notified respondents' counsel by e-mail of the arbitration session. By facsimile dated September 3, 2012, Hertz notified the Rabbinical Court that he would like to change the date of the arbitration to September 10 in the afternoon. It is noted that this facsimile did not contain any contact information for Hertz. According to the New Award, the Rabbinical Court tried to contact Hertz numerous times regarding the facsimile and left messages on the voice mail associated with his cell phone number by which they had previously communicated. On September 6, 2012, the respondents did not appear at the arbitration. The Rabbinical Court sent a hand delivered letter to Hertz, dated September 6, 2012, accommodating Hertz's request and rescheduling the arbitration session for September 10, 2012 at 1:00 PM. This correspondence specifically noted that, "[t]he Beth Din reserves the right to render a decision in the event that one of the parties fails to appear at a scheduled hearing." By facsimile dated September 10, 2012, the day of the arbitration session, Hertz notified the Rabbinical Court that his unidentified Toan ^[FN1] was not available and Hertz, "would like to reschedule to a later date which I will call you to let you know." The New Award noted that the respondents had not previously been represented or associated with a Toan known to the Beth Din.

The Beth Din determined that "[the respondents'] communicative pattern of behavior has consistently demonstrated evasion and obstruction of the judicial process of this Beth Din, and has clearly illustrated non-compliance with the explicit court order [of February 29, 2012] to promptly arrange a session before the Beth Din." Accordingly, on October 11, 2012, the Beth Din conducted an arbitration session, in the absence of the respondents, and awarded a judgment against the respondents, jointly and severally, in the amount of $244,433.00. Pursuant to this court's order of February 29, 2012, the panel of arbitrators was entirely different from the panel that issued the June 19, 2011 award. Petitioner moves to confirm the New Award.

In opposition to the petition, respondents argue that the petition should be denied, and the New Award vacated, as the award was not served pursuant to CPLR 7507, the award was usurious and irrational, there was no valid agreement to arbitrate, and the guaranty is uneforceable as it is barred by the statute of limitations. Respondents do not cite any case law or include an affirmation or affidavit by a person with knowledge in support of its opposition to the petition. It is also noted that respondents have not provided a reason for defaulting before the Beth Din, not denied entering into the Guaranty, not denied receiving any of the notices for the scheduling of the arbitration, and not denied receiving the decision from the arbitrator.

By consenting to appear before the Beth Din in court on February 29, 2012 , respondents waived any objection to jurisdiction of the Beth Din and acknowledged the validity of the arbitration provisions contained in the Guaranty. This court agrees with the finding of the Beth [*3]Din that the respondents have repeatedly evaded the Beth Din and attempted to thwart the arbitration process and this court's order of February 29, 2012.

Respondents claim that the New Award was not properly served pursuant to CPLR 7507. An affirmation by Rabbi Aryeh Dovid Ribowsky states that the Beth Din mailed the New Award to Hertz's personal address and his attorney's office on October 12, 2012. While the affirmation does not indicate that the New Award was sent by certified mail as required by CPLR 7507, prior correspondence sent to Hertz by certified mail was returned unclaimed and respondents have not provided an affidavit or affirmation indicating that they did not receive the New Award from the Beth Din. In light of respondents' numerous attempts to thwart communications regarding the arbitration process, delivery by ordinary mail was adequately calculated to provide notice in the circumstances and does not invalidate the award (see Sassower v Greenspan, Kanarek, Jaffe & Funk, 121 AD2d 549 [2d Dept 1986]; Matter of Local 964 v Giresi, 29 AD2d 768, 769 [2d Dept 1968]; Matter of Kozlowski v Seville Syndicate, 64 Misc 2d 109, 118 [Sup Ct Trial Term, New York County 1970]).

Respondents argue that the New Award should be vacated pursuant to CPLR 7511(b)(2)(i) as it was usurious. Apart from the lack of substantive merit to this argument, as the New Award expressly states that no interest was added to the award but that petitioner's claim was adjusted based upon the value of gold at the time of the original Beth Din award on June 13, 2011, respondents' application for vacature was raised solely in response to petitioner's motion to confirm, more than 90 days after the delivery of the New Award on October 12, 2012 (see CPLR 7511[a]). Respondents argue that the New Award should also be vacated as it is barred by a statute of limitations defense pursuant to CPLR 213(2).^[FN2] This argument is unavailing as, "[t]he Statute of Limitations may be an independent, per se ground to vacate an award only when asserted by a party who neither participated in the arbitration nor was served with a notice of intention to arbitrate" (Motor Vehicle Accident Indemnification Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996], citing CPLR 7511[b][2][iv]; see CPLR 7502[b]). As respondents consented to participate in the arbitration, and failed to raise the statute of limitations defense, either in an application for a stay of arbitration or in the arbitration itself, the defense is waived (Motor Vehicle, 89 NY2d at 223).

Accordingly, the petition is granted.

ORDERED, ADJUDGED, AND DECREED that petitioner, Kahan Jewelry Corporation, having an address at 1156 Avenue of the Americas, 8th Floor, New York, NY 10036, does recover of the respondents, Robert Hertz, having an address at 1672 45th Street, Brooklyn, NY 11204, and Best Opal Co., having an address at 4029 27th Street, Long Island City, NY 11101, jointly and severally, the sum of $224,433.00, with interest thereon from the 11th day of October, 2012, together with costs and disbursements to be computed by the County Clerk, and that petitioner have execution therefor.

E N T E R :

J.S.C.