BEVONA v. DAVID LIPTON 31 WEST 47TH STREET CO (2000)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about August 25, 1999, which denied petitioner's motion to restore to the court calendar his petition to confirm an arbitration award, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the petition reinstated.

Petitioner has demonstrated that its case was meritorious, that it had a reasonable excuse for the delay, that there was no intent on its part to abandon the matter, and that there was no prejudice to the opposing party (CPLR 3404;  Ramputi v. Timko Contracting Corp., 262 A.D.2d 26, 691 N.Y.S.2d 432).   It is apparent that law office failure explains the delay in moving to restore.   In light of the merits of the petition and the absence of prejudice to respondents, the law office failure constitutes a reasonable excuse for the delay (CPLR 2005;  Sanchez v. Javind Apt. Corp., 246 A.D.2d 353, 667 N.Y.S.2d 708).   Had it been given leave to renew its motion to restore, petitioner could have demonstrated that its petition to confirm was meritorious by submitting, as it did on appeal, the arbitration award and the 1990 Commercial Building Agreement between Local 32B-32J and the Realty Advisory Board on Labor Relations.   The award found that respondents had breached the Agreement by failing to pay employee Jose M. Rivera the correct contractual wage rate and failing to make contributions to the various union funds on his behalf, and directed respondents to pay $15,623.69 in back wage differential and overtime pay to Rivera and a total of $9,917.60 to the health, pension and annuity funds.   Since this is not a case in which evidence and witnesses' recollections must be preserved (cf., Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720, 511 N.Y.S.2d 595, appeal dismissed 69 N.Y.2d 874, 514 N.Y.S.2d 723, 507 N.E.2d 317), there is little, if any, prejudice to respondents resulting from the passage of time.

We have considered respondents' remaining arguments and find them to be without merit.

MEMORANDUM DECISION.