Giamo v. Visscher

• Decision Date: 26 April 2012
• Parties: In the Matter of the Arbitration between Vincent J. GIAMO, Appellant,andMichael VISSCHER, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03262
94 A.D.3d 1395
942 N.Y.S.2d 705

In the Matter of the Arbitration between Vincent J. GIAMO, Appellant,andMichael VISSCHER, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 26, 2012.

[942 N.Y.S.2d 706]

Donohue, Sabo, Varley & Huttner, Albany (Bruce S. Huttner of counsel), for appellant.

Fox & Kowalewski, L.L.P., Clifton Park (Edward Kowalewski Jr. of counsel), for respondent.

Before: PETERS, P.J., MALONE JR., KAVANAGH, STEIN and EGAN JR., JJ.

PETERS, P.J.

[94 A.D.3d 1395] Appeal from a judgment of the Supreme Court (J. Sise, J.), entered February 25, 2011 in Montgomery County, which denied petitioner's application pursuant to CPLR 7511 to modify and/or partially vacate an arbitration award, and confirmed the award.

In 2004, petitioner and respondent entered into a contract for the construction of a single family home for petitioner. The contract named “Michael Visscher” as the contractor, was signed by respondent without any reference to a corporate capacity or status and contained a clause requiring that “[a]ll disputes hereunder ... be resolved by binding arbitration.” After a dispute arose between the parties over the quality of the work performed, petitioner served a notice of intention to arbitrate upon respondent, which named respondent individually as the party to the arbitration. Thereafter, petitioner and respondent, individually, signed an agreement to submit to binding arbitration in which they agreed to arbitrate “certain construction contract disputes between the parties.” Respondent also filed a prearbitration statement affirming that he entered into the contract individually and asserting a counterclaim for moneys due under the contract.

Approximately six months later, and just prior to the commencement[94 A.D.3d 1396] of the arbitration hearing, respondent submitted an

[942 N.Y.S.2d 707]

amended prearbitration statement claiming that he entered into the contract on behalf of Michael Visscher Carpentry, Inc. (hereinafter MVCI), his wholly owned corporation, and that MVCI is entitled to an award of the amounts due under the contract. At some point during the hearing, respondent moved to amend the caption of the arbitration proceeding to name MVCI, rather than him, individually, as the respondent therein. At the conclusion of the hearing, the arbitrator issued an award that granted respondent's motion to amend the caption to name MVCI as the respondent in the proceeding and...