The opinion
Alpine Advance 5 LLC v Storm Restoration Specialists
Inc.
2025 NY Slip Op 31800(U)
May 16, 2025
Supreme Court, New York County
Docket Number: Index No. 654025/2024
Judge: Ariel D. Chesler
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 654025/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/16/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARIEL D. CHESLER PART 62M
Justice
-------------·-------------------------------------------- --------X INDEX NO. 654025/2024
ALPINE ADVANCE 5 LLC,
MOTION DATE 08/08/2024
Petitioner,
MOTION SEQ. NO. 001
-v-
STORM RESTORATION SPECIALISTS INC., ANDREW
DECISION + ORDER ON
FISHMAN
MOTION
Respondent.
-------------------------------- ---------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13
were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT
Upon the foregoing documents, it is
Petitioner has moved before this Court in an Article 75 proceeding for an Order
confirming an arbitration award, post judgement interest on the award and reasonable counsel
fees. Proper notice of this action was given and Respondents have not submitted any opposition
to the petition.
BACKGROUND
The parties entered into a written contract dated June 17, 2024 (Verified Petition ,i 6
[NYSCEF Doc. No. 1]). The contract contains an agreement to arbitrate any dispute, including
issues of arbitrability, with the arbitration to be administered by Mediation and Civil Arbitration
Inc ("MCA") under its Commercial Arbitration Rules ("MCA Rules") (Contract ,i 42 [NYSCEF
Doc. No. 4). MCA Rule 32.1 authorizes service of a demand for arbitration by email (Id. ,i 8).
On or around July 8, 2024, a demand for arbitration was filed with MCA and MCA gave
notice to the Respondents in accordance with MCA Rule 5.5 (Verified Petition ir,i 10-12).
Respondent did not file an answering statement after MCA gave notice of the demand for
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arbitration (Id. ,i 16). On July 31, 2024, Amanda Becker, as Arbitrator, made their award, on
default, in writing and awarded that $97,368.75 is due to the Petitioner from Respondents, jointly
and severally (Final Arbitration Award, NYSCEF Doc. No. 7). After the Arbitrator delivered a
copy of the award to each party on July 31, 2024, in accordance with MCA Rule 3 7, the
Respondents did not comply with the award within seven days (Verified Petition ir,i 18-21 ).
Petitioner commenced this action by filing a petition on August 8, 2024, seeking
confirmation of the arbitration award, post judgment interest at a rate of 10%, and counsel fees
connected to this application. Petitioner properly served the Notice of Petition on Respondents
(Affidavit of Service, NYSCEF Doc. Nos. 12, 13). To date no opposition to the petition has been
filed.
DISCUSSION
As an initial matter, this Petition is marked fully submitted and remains unopposed. The
Court need not go into a lengthy analysis of the relief sought. If it were to do so, the Petition
would be granted in part for the reasons stated below.
I. Confirmation of the Arbitration Award
CPLR § 7510 provides that "the Court shall confirm an award upon application of a party
made within one year after its delivery to them, unless the award is vacated or modified upon a
ground specified in section 7 511 of this article." The application to confirm must be made within
one year, which begins to run upon the delivery of the award to the moving party. The one-year
period is treated like a statute of limitations, thus generally depriving courts of discretion to
extend the period (Teachers Ass'n of the Tarrytowns v. Tarrytown Board of Education, 59
A.D.2d 890, [2d Dept 1977]).
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Here, Respondents have not moved to vacate or modify the arbitration award, and no
evidence has been presented to the Court that the arbitrator modified the award in any way since
it's issuance. The arbitration award was delivered on July 31, 2024, and the Petitioner made this
application on August 8, 2024, well within the year limit.
Accordingly, the petition to confirm the arbitration award shall be granted as unopposed.
II. Post-Judgement Interest
Contracts are interpreted according to the intent of the parties, which is best evidenced by
what they express in their written agreement (Schron v Troutman Sanders LLP, 20 N.Y.3d 430,
436 [2013]; Greenfield v Philles Records, 98 N.Y.2d 562, 569 [2002]). Paragraph 40 of the
parties' contract states:
If ALPINE becomes entitled to the entry of a judgment against any Merchant or
any Guarantor, then ALPINE will be entitled to the recovery of prejudgment
interest at a rate of 10% per annum, or the maximum rate permitted by applicable
law if less, and upon entry of any such judgment, it will accrue interest at a
postjudgmcnt rate of 10% per annum, or the maximum rate permitted by
applicable law if less, which rate will govern over the statutory rate of interest up
until actual satisfaction of the judgment.
CPLR § 5004 sets the statutory interest rate at 9% per annum.
Here, the parties' contract unambiguously provided that any post-judgment interest shall
be at a rate of 10% unless the maximum rate under applicable law is less. While the Court can
acknowledge Petitioner's argument is unopposed, if the parties intended the interest rate to be set
at 10% regardless of applicable law it would have been worded differently. Therefore,
Petitioner's request for a post judgment interest rate of 10% is denied and the interest rate shall
be set to the statutory amount of 9%.
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III. Counsel Fees
On an application to confirm, the court may entertain claims for any costs incurred in the
judicial proceeding to confirm the award (as distinguished from costs incurred in the arbitration)
(See Meehan v. Nassau Community College, 242 A.D.2d 155, 159-160 [2d Dept 1998]).
Paragraph 39 of the parties' contract states:
If an Event of Default occurs or ALPINE prevails in any litigation or arbitration
with any Merchant or any Guarantor, then each Merchant and each Guarantor
must pay ALPINE's reasonable attorney fees, which may include a contingency
fee, as well as administrative or filing fees and arbitrator compensation in any
arbitration, expert witness fees, and costs of suit.
Here, there is no question that the parties' contract contains an express provision for an
award ofreasonable attorney's fees should petitioner prevail in any litigation. Petitioner provided
an affirmation of attorney's fees which set forth Counsel's qualifications, hourly rate and time
spent preparing and pursuing the petition 1. Accordingly, the Court will grant the request for
counsel fees in connection to this action in the amount of $3,000.
Accordingly, it is hereby
ORDERED AND ADJUDGED, the motion is granted in part, in the manner stated
above, as unopposed; and it is further
ORDERED AND ADJUDGED, the arbitration award is confirmed; and it is further
ORDERED AND ADJUDGED, and the post-judgment interest shall be set at a rate of
9% until the judgment is satisfied; and it is further
ORDERED AND ADJUGED, Petitioner is awarded the amount of $3,000 as and for
counsel fees; and it is further
1
The Court notes that while providing a copy of Petitioner's retainer agreement as well as copies of invoices for the
work spent on this proceeding would have been best practice, the issue remains unopposed.
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ORDERED AND ADJUGED, Petitioner is entitled to judgment against Respondents for
the sum of $100,368.75 plus statutory interest, and have execution thereof; and it is further
ORDERED AND ADJUGED, the County Clerk is directed to enter judgment in favor
of Petitioner and against Respondents in the amount of $100,368.75, plus statutory interest to be
computed by the Clerk of Court, plus counsel fees in the sum of $3,000.
This constitutes the Decision and Order, and Judgment of the Court.
HON. ARIEL O. CHES};~
5/16/2025
DATE
CHECK ONE: CASE DISPOSED
d-
NON-FINAL DISPOSITION
tL-
ARIEL D. CHESLER, J.S.C.
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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