In re the Arbitration between Sanders Construction Corp. & Becker

Mar 5, 2002
Versions:

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered June 5, 2001, confirming an arbitration award in favor of petitioner home improvement contractor and against respondents homeowners, unanimously affirmed, with costs.

Since the order that denied respondents’ prior application to stay the arbitration was a final, appealable order, the issues raised therein, or which could have been raised, including the defect in the demand for arbitration in not advising of the 20-day time limit for seeking a stay (see, Morfopoulos v Lundquist, 191 AD2d 197), and any failure to comply with the arbitrator selection provisions of the agreement (see, CPLR 7503 [b]), are not within the scope of review of the instant appeal from the subsequent judgment confirming the arbitration award (see, Matter of Morrow [Paragon Enters.], 135 AD2d 931, 932, citing Flanagan v Prudential-Bache Sec., 67 NY2d 500, 505 n, cert denied 479 US 931). Because the public policy issue raised by respondents in opposition to petitioner’s instant application to confirm was raised by them on their prior application for a stay but not pursued, their appeal from the order denying a stay having been dismissed, they have waived their right to urge it and the issue is no longer open to review. Were we to review the public policy issue, we would decline to vacate the award on that ground, where the award does not contain any findings on the issue of petitioner’s licensing status and otherwise contains nothing on its face to indicate that it violates the public policy against recovery by unlicensed home improvement contractors (see, Matter of Hirsch Constr. Corp. [Anderson], 180 AD2d 604; Matter of Kuchar v Baker, 261 AD2d *156402). We have considered and rejected petitioner’s other arguments, including that the arbitrator abused his discretion in refusing an adjournment (see, Matter of Banas [Leumi Sec. Corp.], 194 AD2d 390). Concur — Tom, J.P., Mazzarelli, Sullivan, Wallach and Marlow, JJ.