DERAGON v. BURKART (2008)

 Plaintiff commenced this action as attorney in fact for her brother (decedent), who was mentally impaired, seeking to recover sums that allegedly were fraudulently taken from decedent by defendant.   She thereafter continued the action as administratrix of decedent's estate, and the case proceeded to arbitration.   Plaintiff moved to confirm the award, and defendant appeals from an order granting in part plaintiff's motion.   We note at the outset that, although defendant appeals from an order rather than from the judgment in which the order was subsumed, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 529 N.Y.S.2d 658;  see also CPLR 5520[c] ).  We agree with plaintiff that defendant failed to meet his burden of establishing that the arbitrator's award, to the extent that it was confirmed by Supreme Court, “is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power” (Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261;  see Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 N.Y.2d 907, 909, 524 N.Y.S.2d 389, 519 N.E.2d 300).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: