Ansel v Pabon (2013 NY Slip Op 52189(U))

Ansel v Pabon

2013 NY Slip Op 52189(U) [42 Misc 3d 130(A)]

Decided on December 11, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

James Ansel, Appellant, —

against

Iris Pabon, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), dated March 6, 2012. The order denied plaintiff's motion to vacate or modify an arbitrator's award and, in effect, a judgment entered January 19, 2012 pursuant to the arbitrator's award.

Plaintiff commenced this small claims action against defendant, his former tenant, to recover $5,000 for "nonpayment of rent and cleaning, repairs, damage and loss of use of property." Defendant counterclaimed to recover the sum of $5,000, alleging "defective repairs and damage caused to other personal property and failure to return deposit, breach of agreement and damage caused to person." The parties agreed to submit the matter to arbitration and signed a "consent to arbitration," advising them that the arbitration award was final and that no appeal would be permitted. After the arbitration hearing, the arbitrator dismissed plaintiff's cause of action and awarded defendant the sum of $5,000 on her counterclaim. On January 19, 2012, a judgment was entered pursuant to the arbitrator's award. Plaintiff subsequently moved to vacate or modify the arbitrator's award and, in effect, the judgment entered pursuant thereto. Plaintiff appeals from the order denying his motion.

A party seeking to vacate or modify a small claims arbitration award, and a judgment entered pursuant thereto, bears the burden of establishing, by clear and convincing evidence, one of the statutory grounds enumerated in CPLR 7511 (b) or (c) (see e.g. Matter of Arab v ATC Jewelers, Inc., 45 AD3d 588 [2007]; Benham v George, 28 Misc 3d 128[A], 2010 NY Slip Op 51190[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). While plaintiff raised one of the statutory grounds for vacatur, i.e., that the arbitrator "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (CPLR 7511 [b] [iii]), his conclusory allegations were insufficient to warrant the vacatur on that basis of the arbitration award and the judgment entered pursuant thereto.

As plaintiff failed to establish any statutory ground warranting the vacatur or modification of the arbitration award and the judgment entered pursuant thereto, the Civil Court properly denied plaintiff's motion.