SUPREME COURT OF THE STATE OF NEW YORK. Respondents. The followine papers have been read on these motions:

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1 5CQ- SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice In the Matter of the Arbitration between MIRO LEISURE CORP TRIAL/IAS PART 32 NASSAU COUNTY - against CATERERS INC. d//a K. SWEENEY' S STATION SALOON and DANIEL COLLINS, GUARANTOR Claimant Index No. : 13328/10 Motion Seq. Nos. : 01, 02 Motion Dates: 07/30/10 09/03/1 0 Respondents. The followine papers have been read on these motions: Notice of Petition Petition and Exhibits Notice of Cross-Motion Affirmation Affidavit and Exhibits Affidavit in O osition to Cross-Motion Affrmation and Exhibits Supplemental Affirmation in Opposition to Cross- Motion and Exhibit Attorney s Supplemental Affirmation in Support of Cross- Motion and Affdavits Papers Numbered Upon the foregoing papers, it is ordered that the motions are decided as follows: Claimant, Miro Leisure Corp., brings this proceeding for an order confirming the Award of the Arbitrator and directing judgment be entered thereon pursuant to CPLR Respondents oppose claimant's motion and cross-move for an order vacating the Arbitrator s A ward of Dina R. Jansenson ofjams New York, dated June ; remanding this action to JAMS New York for

2 a new arbitration hearing on a date set with written notice to respondents ' counsel; or in the alternative, staying all proceedings in this action pending joinder of this action with respondents action (Collns v. Leventhal Nassau County Supreme Cour) against claimant and its principal and setting a joint discovery schedule for the joined actions. Claimant opposes respondents ' crossmotion. Claimant submits that on Januar 9, 2005, claimant and respondents entered into two agreements which provided claimant with the exclusive right to operate its coin operated amusement devices at the RK. Sweeney s Station Saloon located at Street, Douglaston New York for a period of ten (10) years. These contracts were duly guaranteed by respondent Daniel Collns ("Collns ). Paragraph 9 of the aforementioned installation contracts provided that all disputes be submitted to arbitration by one Arbitrator in accordance with the rules and regulations of any reputable arbitration/mediation company. A dispute arose between claimant and respondents and, on September , a Demand for Arbitration was served upon respondents. The matter was submitted for arbitration before Dina R. Jansenson, Esq., an arbitrator appointed by JAMS. A hearing was held on June 10, 2010, at the office of JAMS, 620 8th Avenue, 34th Floor New York, New York The claimant appeared by Ronald S. Koppelman, Esq. of Blatt & Koppelman, P.C. and respondents failed to appear. At said hearing, the arbitrator heard all testimony and received documents into evidence and having received and considered same, after due consideration, an award was rendered on June 14, Pursuant to said award, respondents jointly, are to pay to claimant the sum of$ The Cour notes that the Final Award issued by Dina R. Jansenson, Esq. on June stated "(t)he Arbitrator finds that Respondents had notice of the arbitration as a result of the following notices: Claimant served the Demand upon

3 Respondents via Certified Mail on September ; By letter dated May , Claimant's counsel wrote a letter to Daniel Collins informing him that the ' arbitrator in the above entitled arbitration proceeding has scheduled a trial of 10:00 a. m on June 10, '; On May 5, 2010 JAMS served upon all paries, by regular mail, a Notice of Hearing and Pre- Hearing Order No. 01; and on June , Claimant' s counsel sent to Daniel Collns a copy of Claimant' s Pre-Hearing Brief, and stated inter alia (a)s a reminder, the arbitration proceeding has scheduled a trial for 10:00 a. m. on June at the offices of JAMS located at 620 Eight Ave., 34 Floor, New York, New York.' At the hearing Claimant' s counsel informed the Arbitrator that he received a call from Daniel Collins who stated that he would not appear at the arbitration hearing and, indeed, Mr. Collins also called the Arbitrator s case manager and likewise informed her that he would not be attending the hearing. See Claimant's Affirmation in Support Exhibit 2. Respondent Collns claims that the reason that he failed to appear for the scheduled arbitration hearing (resulting in the Arbitrator s A ward being made without him defending his interests at said hearing) is because he allegedly telephoned the Arbitrator s offices the day before the scheduled hearing to advise the co-ordinator that he would be appearing pro se to defend himself and was advised by the staff person whom he spoke with that the hearing had been adjourned. Respondent Collins offers as evidence of same a copy of his cell phone bil showing the call to the Arbitrator s office. See Respondent' s Affidavit in Opposition Exhibit 4. Respondents argue that they have a meritorious defense to the arbitrated claim inasmuch as the underlying contract giving rise to the claim was fraudulently backdated by the claimant and its principal, Mitchell Leventhal. Respondents assert that the second and third pages of the fraudulently backdated contract were substituted, un-initialed and unsigned after Mr. Leventhal, the claimant'

4 principal, fraudulently induced respondent Collns to sign the two-page document that he presented to him in Januar The substituted pages are the only portions of the purorted contract that permit arbitration or award automatic attorney s fees. In reply to respondents ' cross-motion, claimant provides the Cour with the original contracts signed by respondent Collns. The first contract, dated Januar , is for the operation of the phonograph and is on green paper. The second contract, also dated Januar , is for the operation of the amusement devices and is on pink paper. These contracts are printed with the first and last pages on one side and the second and third pages on the other side. Claimant also argues that the assertion that Mr. Leventhal slipped in pages two and three is impossible since they are attached to pages one and four on the rear. The Cour fuher notes that page one ends with paragraph enumerated 7(e) while the first paragraph enumerated on page four is paragraph 26. CPLR 7511 (b), the grounds for vacating an arbitration award, states " 1. The award shall be vacated upon the application of a pary who either paricipated in the arbitration or was served with a notice of intention to arbitrate if the cour finds that the rights of that par were prejudiced by: (i) corrption, fraud or misconduct in procuring the award; or (ii) pariality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this aricle, unless the par applying to vacate the award continued with the arbitration with notice of the defect and without objection. The Court finds that respondents have failed to provide evidence of any of the above listed grounds. Additionally, the Cour does not find merit in respondent Collns' argument that he called the arbitrator s office and was told that the arbitration hearing was adjoured. Why would the

5 , \ '- (/( '-./ /'"'\,/. : -- arbitrator allegedly falsify the report of her final award by containing the information concerning respondent Collns callng her case manager and informing her that he would not be attending the hearing? Furthermore, respondent Collins ' affidavit fails to mention the date to which the arbitration hearing was allegedly adjourned or that he made any fuher contact with JAMS to inquire as to why the arbitration hearing took place when he was told it was adjoured. Consequently, respondents' cross-motion (Motion Seq. No. 02) is hereby denied in its entirety. Claimant's application (Motion Seq. No. 01) is granted and the Cour hereby confirms the arbitration award issued by Dina R. Jansenson, Esq. on June in its entirety. The clerk is directed to enter judgment therein in the sum of$ This constitutes the Decision and Order of this Cour. ENTER: i') " I 1" 't"--'i :'.l/ ' A Dated: Mineola, New York November 29, 2010 DENISE L. SHER, A.,,1E.f\ED tc 0?nft fjs U ER 1'( C\.. \ \ CO\) SOff'CE