Lipsky v. Koplen

Apr 2, 2001
Versions:282 A.D.2d 462
722 N.Y.S.2d 421
2001 N.Y. App. Div. LEXIS 3240

—In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, Michael Koplen appeals from (1) an order of the Supreme Court, Rock-land County (Bergerman, J.), dated August 2, 1999, which denied his motion to reject the Referee’s report, and (2) a judgment of the same court, entered September 16, 1999, which, upon an order of the same court, also entered September 16, 1999, granting the petition to confirm the award, is in favor of the petitioner and against him in the principal sum of $15,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

*463Ordered that the petitioner is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the proceeding (see, Matter of Aho, 39 NY2d 241). The issues raised in the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The Supreme Court correctly determined that the appellant waived his claim that the Referee should have recused himself (see, Dime Sav. Bank v Glavey, 214 AD2d 419). Additionally, the Supreme Court’s acceptance of the Referee’s report despite its late filing was proper (see, John Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assocs., 169 Misc 2d 493; CPLR 4320). Since the findings are supported by substantial evidence in the record, and the Referee clearly defined the issues and resolved matters of credibility, the report was properly confirmed (see, Pittoni v Boland, 278 AD2d 396). Ritter, J. P., Krausman, McGinity and Smith, JJ., concur.