ASSET ACCEPTANCE LLC USA v. SISSON (2007)

This is a special proceeding to confirm the award of an arbitrator pursuant to CPLR § 7510.   The matter was made returnable before this Court on March 13, 2007.   Neither party appeared, and the Court denied the petition on the record, and herein makes this decision in support of said order of denial.

The arbitrator made his decision awarding the petitioner $2,872.80 and pursuant to CPLR § 7507 mailed a copy of same to the parties on December 14, 2005, by first class mail, postage prepaid as shown by the “Acknowledgment and Certificate of Service” (Exhibit B of the Petition).

The contract between the parties called for binding arbitration (Exhibit A of the Petition). The petitioner states that the petition is being brought within one year of the award and the award has not been vacated or modified pursuant to CPLR § 7511.   Petitioner's petition provides copies of the arbitration clause in the credit card agreement (Exhibit A) and the award (Exhibit B).

Petitioner failed to provide proof that the respondent was personally served with the notice of petition and petition;  nor did it provide the court with a copy of the notice of arbitration required under CPLR § 7506(b).

Of great concern to the Court is the filing of the Notice of Petition and Petition within one year of the award.  CPLR § 7510.   Here, the award was served on the parties on December 14, 2005.   The Notice of Petition and Petition were filed January 11, 2007.   However, the petitioner failed to provide proof to the Court that it did not receive notice of the award until on or after January 11, 2006, being one year prior to the filing of the Notice of Petition and Petition.

Andrew Garrett Holding Corp. v. Singer, N.Y.L.J., Feb 9., 2005, p. 18, col. 1 (Sup.Ct. N.Y. County;  Goodman, J., SPR 163:3), is instructive as it involves an attorney malpractice action arising from a law firm's alleged failure to confirm an arbitration award.   Professor Siegel in his NEW YORK PRACTICE, Fourth Edition, section 601 (2006 pocket part), notes that missing the one year requirement of CPLR § 7510 is a statute of limitations in that it can result in forfeiture of the entire award.   The Andrew Garrett case illustrates that if the lawyer for the winner of the award fails to secure confirmation within one year, that lawyer can be sued for legal malpractice.

Therefore, based on the foregoing, the petition is denied, with prejudice.

This constitutes the Opinion, Decision and Judgment of the Court.

SO ORDERED.

W. PATRICK FALVEY, J.