The following numbered papers read on this petition to vacate, modify, or remand an arbitration award, and cross petition to confirm the arbitration award. PAPERS NUMBERED Notice of Petition — Verified Petition — Exhibits EF 1-9 Notice of Cross-Petition — Affidavits — Exhibits EF 10-21 Answering Affidavits — Exhibits EF 22-23 Replying EF 24-35 For an Order, Pursuant to Article 75 of the CPLR, Vacating Arbitration Award Upon the foregoing cited papers, and after Skype for Business (SfB) conference, it is ordered that the petition by McLaren Automotive, Inc. (“McLaren”) for an order pursuant to CPLR Article 75 vacating, modifying, or remanding an arbitration award (“Award”) dated October 31, 2019, and cross-petition by respondent for an order confirming the Award, are consolidated for disposition, and are determined as follows: On or about December 23, 2017, respondent purchased a 2016 McLaren Model 650s automobile (the “Vehicle”). On or about September 9, 2019, respondent submitted a Request for Arbitration Form under the New York New Car Lemon Law Arbitration Program. A Notice of Hearing (“First Notice”) dated October 10, 2019, scheduled an arbitration hearing for November 6, 2019. Both petitioner and respondent acknowledge receipt of the First Notice. Respondent subsequently requested a different date for the hearing, and a second notice (“Second Notice”) dated October 11, 2019, rescheduled the hearing for October 30, 2019. Petitioner contends that it did not receive the Second Notice, and that when it appeared on November 6, 2019, it learned for the first time that the hearing had been rescheduled, and had already taken place on October 30, 2019. The Award noted that petitioner had failed to appear, and granted respondent’s claim for a refund of the purchase price of the Vehicle, plus fees, for a total of $225,533.50. Petitioner now seeks to vacate the Award on the grounds that it did not receive the Second Notice rescheduling the arbitration, and was thus not provided a full and fair opportunity to participate in the arbitration. Respondent seeks to confirm the Award. Since Lemon Law arbitration is compulsory, judicial review under CPLR Article 75 is broad, and requires that the award be granted in accordance with due process (see Gen. Motors Corp. v. Lee, 193 AD2d 741, 741 [1993]). A fundamental requirement of due process is notice reasonably calculated, under all the circumstances, to a party of the pendency of the action to afford them an opportunity to participate (see Old Republic Ins. Co. v. Countrywide Ins. Co., 2020 WL 735676 *2 [Sup Ct, Kings County 2020]). The arbitrator is required to notify the parties of the time and place of the hearing, and prejudicial defects in giving notice may be a basis for vacating an award (see Id; CPLR 7511[b][2]). Petitioner initially does not submit an affidavit or affirmation from anyone with personal knowledge to support its contention that it did not receive the Second Notice. In reply, petitioner submits, among other things, the affidavits of Patrick Dahlberg, Client Services Manager – North America, for petitioner, and Elaine Maskevich, a paralegal coordinator for petitioner’s counsel. Mr. Dahlberg states that pursuant to petitioner’s policies and procedures, if it had received a copy of the Second Notice, the notice would have been internally routed to his attention. He avers that he conducted a reasonable search of where such a notice would be stored, and has not located a copy of the Second Notice. He does not, however, submit any insight as to what petitioner’s policies and procedures are, or how he comes to receive such notices. The Court notes that copies of the notices show that they were addressed to petitioner at 750 3rd Ave., Suite 2400, New York, NY 10017, and Mr. Dahlberg states that his business address is 1405 South Beltline Road, Suite 100, Coppell, Texas 75019. He does not allege that he was in New York at the dates in question. He further provides no details of the search he conducted to try and find the Second Notice, or state if he conducted an investigation, or contacted anyone to try to determine if it had been received, Nor does petitioner offer any evidence of who initially receives correspondence addressed to it, and how it is ensured that such correspondence makes its way to him. Ms. Maskevich states that on January 13, 2020, she spoke on the telephone with Joseph A. Gorman, Lemon Law Arbitration Program Manager for The New York State Dispute Resolution Association, Inc. (“NYSDRA”), and requested a copy of his file for the underlying arbitration. She avers that Mr. Gorman emailed a copy of his file which included a copy of the First Notice dated October 10, 2019, however, the Second Notice was not included in the file. Petitioner contends that this is evidence that the Second Notice was not in NYSDRA’s possession, and thus could not have been sent to petitioner. Respondent, however, submits Mr. Gorman’s affidavit, to which he attaches copies of both notices. Mr. Gordon states that he forwarded materials regarding the case to petitioner, respondent, and EAC Network, LI Dispute Resolution Centers (“EAC”), who was assigned as the coordinator for the case. As the case coordinator, EAC was responsible for assigning an arbitrator and scheduling an arbitration hearing. He avers that all of the correspondence he sent petitioner while the case was open was sent to 750 3rd Ave., Suite 2400, New York, NY 10017, by regular mail, and none of it was returned. He further identifies an email he sent to Martha Trice-Lewis, Lemon Law Coordinator for EAC, to see if the Second Notice had been mailed to petitioner. Ms. Trice-Lewis responded “Yes, Unable to reach them by phone or email.” It is well-established that a party seeking to vacate an arbitration award has a heavy burden and must establish a basis for such relief by clear and convincing evidence (see Denaro v. Cruz, 115 AD3d 742, 742-43 [2014]). Lack of service must be proven by competent evidence from a witness with personal knowledge (see Matter of Shefa Brucha Inc./Hatzlachh Supply, Inc. & Topaz Elecs., Inc., 233 AD2d 276, 276 [1996]). The burden is on petitioner to demonstrate that the method of service utilized very likely would not have provided it with notice, and in fact did not (see Granite Associates, Inc. v. Rolon, 2008 NY Slip Op 30769[U][Sup Ct, New York County 2008]). The burden of proving proper service cannot be shifted to respondent as he had no role in providing service (see Id). Here, petitioner fails to meet its burden. The evidence shows that the notices were sent by regular mail which is sufficient under the Used Car Lemon Law (General Business Law §198-b) (see Giant Used Cars A/S, Inc. v. Baptiste, 177 Misc2d 1013 [Sup Ct, Queens County 1998]). Although the presumption of delivery of an arbitration notice may be rebutted by a denial coupled with a showing of failure to follow proper procedures (see Connolly v. Allstate Ins. Co., 213 AD2d 787, 788 [1995]), here, petitioner simply contends that it did not receive the Second Notice. It does not submit an affidavit from someone with personal knowledge, or even allege, let alone establish, that there was a failure to follow proper procedures. Furthermore, the cases it relies upon are distinguishable as they involved instances where the notices were allegedly sent to an incorrect address (see Id; Fabricant v. R.T.I. Realty Corp., 91 AD2d 623, 624 [1982]). As to the cross petition, pursuant to CPLR 7510, “[t]he court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511″ (CPLR 7510). Here, the arbitration award was dated October 31, 2019, rendering the instant application timely. Furthermore, the petitioner “failed to advance any of the statutory grounds for vacating or modifying the award…” (Allstate Ins. Co. v. Dental Health Care, P.C., 24 AD3d 437, 438 [2005]). Respondent is further entitled to interest from October 31, 2019. The branch of the cross petition seeking additional penalties and attorneys’ fees is denied in the Court’s discretion (see General Business Law §198 — a[h], a[1]). Accordingly, it is ORDERED and ADJUDGED that the petition is denied. The cross petition is granted and the arbitration award dated October 31, 2019, in the sum of $225,533.50 is hereby confirmed with prejudgment interest at a rate of 9 percent per annum, from October 31, 2019. Any request for relief not expressly granted herein is denied. This constitutes the decision and judgment of the Court. Dated: November 9, 2020
