Schwimmer v. Lincoln Auto. Fin. Servs.

Schwimmer v Lincoln Auto. Fin. Servs. 2024 NY Slip Op 33981(U) November 11, 2024 Supreme Court, Kings County Docket Number: Index No.510396/2023 Judge: Ingrid Joseph 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.

FILED: KINGS COUNTY CLERK 11/07/2024 04:36 PM INDEX NO. 510396/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/07/2024

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At an lAS Part 83 of IAS Part of the Court of Supreme Court the Supreme of the State of of New New York held in and York held for the County and for the County of of Kings Kings at 360 A~ Street,4 3~n, New A ~ Stree!~!qo,klyn, New York, York, on l on the ~ I · day of_U~ (~~ 2024. day of_U=--= (~~:;-.o,-- 2024.

PRESENT: PRESENT: HON.

HON. INGRID INGRID JOSEPH, J.S.C. JOSEPH, J.S.c.

SUPREME COURT SUPREME COURT OFOF THE THE STATE STATE OF OF NEW NEW YORK YORK COUNTY COUNTY OF KINGS KINGS ------------ ----------------------·-----------------------------------X ----------------------------------~-----------------------------------)( Index No: 510396/2 Index No: 023 510396/2023 JOEL MER, SCHWIMMER, JOEL SCHWIM ,. Motion Seq. 1 Motion Seq.

Petitioner(s) Petitioner(s) -against- -against- LINCOLN LINCOLN AUTOMOTIVE SERVICES, FINANCIAL SERVICES, AUTOMO TIVE FINANCIAL ORDER ORDER Responde nt(s) Respondent(s) -------·--------------------------------------------------------------X -------~--------------------------------------------------------------)( NYSCEF papers read The following e-filed papers The herein: read herein: NYSCEF Nos.: Petition/OSC/Affida Annexed Petition/OSC/Affida vits Annexed Exhibits Annexed .......... .

Exhibits Annexed 1-14; 28-29 Affirmation Affinnation in Opposition/ Affida vits Annexed/Exhibits Opposition/Affidavits Annexed .... ;, ...... .

Annexed/Exhibits Annexed 18-27 In In this this matter, matter, Joel Joel Schwimmer Schwimmer ("Petitioner") ("Petitioner") moves vacate an (Motion Seq. 1) to vacate moves (Motion award arbitration award an arbitration pursuant pursuant toCPLR to CPLR 7511 (b)( 1)(iii) on the l(b)(l)(iii) the grounds that the Arbitrator grounds that exceeded her Arbitrator exceeded power and her power imperfectly so imperfectly and so executed executed it it that that aa finite finite and and definite definite award upon the subject award upon subject matter was not matter was made, that not made, Arbitrator's that the Arbitrator's decision decision was was arbitrary arbitrary and capricious capricious and and in violation ofN violation of New York Personal ew York Property Law, Personal Property the New Law, the Yoxk New York Attorney General's guidelines Attorney General's guidelines for excessive excessive wear tear arbitrations wear and tear the policies well as the arbitrations as well guidelines and guidelines policies and of the of the New New York State Dispute York State Dispute Resolution Resolution Association ("NYSDR A"). Lincoln Association ("NYSDRA"). Lincoln Automotive Financial Automoti ve Financial Services ("Respon Services dent") has ("Respondent") motion. opposed the motion. has opposed This This action action arises arises from from an arbitration arbitration award March 24, dated March award dated 2023, wherein 24, 2023, Ulla Arbitrator Ulla wherein Arbitrator Buchner-Howard Buchner-H oward (the (the "Arbitrator") "Arbitrato r") determined Petitioner is, that Petitioner determined that Responde nt for pay Respondent required to pay is. required excess for excess wear of $17 ,175:03. amount of$17 Vehicle") in the amount In support of wear and and tear tear to to aa 2020 Lincoln 2020Linc oln Corsair Corsair (the (the "Subject "Subject Vehicle") ,175;03. In support of his his motion, motion, Petitioner Petitioner states states that that he he leased leased the Subject Vehicle from Subject Vehicle Respondent, which from Respondent, ended ori which ended September ori September 30,2022.

30, 2022. Petitioner asserts that Petitioner asserts that he he retUrned the vehicle returned the Responde nt on vehicle to Respondent October 7, on October 2022, and 7,2022, that on and that on December December 1,I, 2022; 2022, Petitioner Petitioner received received a letter Responde nt with from Respondent letter from auto body with an auto estimate. repair estimate. body repair Petitioner contends Petitioner contends that that upon upon receipt of the receipt of letter, he authorized the letter,he brother Cheskel his brother authorized his Schwimmer to Cheskel Schwimmer contact to contact Respondent Respondent onon his his behalf and request behalf and request that that he he be be allowed conduct his allowed to conduct own excess his own wear and tear excess wear appraisal tear appraisal on Respondent denied his request denied hi~ .. \ . ' the vehicle because the request because had already vehicle had been · already been' on the the vehicle. vehicle. Petitioner Petitioner states states that that Respondent sold sold at at auction. auction. Petitioner Petitioner argues argues that that the Arbitrator's award is arbitrary Arbitrator 's award and capricious, arbitrary and and irrationa~ and capricious, irrationa~ lacked lacked aa plausible plausible basis basis in part part due due to the timeliness timeliness of notice under Respondent's notice of the Respondent's Property Personal Property under Personal Law 343(3)(a), which which requires requires that that a leasing leasing company furnish a lease company furnish lease with written itemized with a written of appraisal of itemized appraisal Law 343(3)(a), excessive wear excessive and tear wear and damage within tear damage with in 30 days after 0 days date on after the date on which the vehicle which the came into vehicle came into the actual the actual physical physical possession of the possession of the lessor, and that lessor, and Respondent herein that Respondent failed to do so. Petitioner herein failed Petitioner contends the that the contends that letter he letter he received from Responden received from Respondent t was was dated dated 55 5 days days after had been vehicle had after the vehicle turned over been turned to them over to and .· them and

In opposition opposition to the motion, argues that Respondent argues motion, Respondent has failed Petitioner has that Petitioner meet his bunlen failed to meet burden warranting vacatur warranting vacatur of of the the arbitrator arbitrator award. award. Respondent that at arbitration, states that Respondent states eviden t that the became evident arbitration, it became Subject Vehicle Subject Vehicle had had been accident or involved in an accident been involved multiple incidents or multiple of physical incidents of and that damage and physical damage Petitioner had Petitioner had opted not to place opted not claim with place a claim insurance company with his insurance or have company or vehicle repaired the vehicle have the repaired but returned returned the the vehicle vehicle in poor poor condition. Respondent asserts condition. Respondent that it established asserts that established that Petitioner did that Petitioner not obtain did not own appraisal his own appraisal from from a licensed licensed appraiser before the appraiser before of the Subject surrender of the surrender nor did he request Vehicle, nor Subject Vehicle, access to the vehicle access vehicle within after Respondent within 14 days after itemized bill for the sent him an itemized Respondent sent damage. Respondent the damage. contends that contends that the wear wear and and tear tear to the Subject Vehicle was Subject Vehicle extensive and was so extensive what is considered exceeded what and far exceeded considered excess wear excess wear and and tear tear that that the the assessment conducted by had to be conducted assessment had licensed auto by a licensed body shop auto body rather than an shop rather Furthermore, Respondent appraiser. Furthermore, appraiser. that Petitioner's argues that Respondent argues conclusory and arguments are conclusocy Petitioner's arguments speculative and and speculative fail to establish fail establish that that the the Arbitrator's Arbitrator's award award was was irrational or an abuse irrational or of discretion. abuse of states that Respondent states discretion. Respondent it was that (1) established that was established (1) the existed, (2) damage existed, the damage the damage (2) the was excessive, damage was and (3) that excessive, and the amount that the amount claimed for claimed for the the damage damage was was reasonable, reasonable, therefore facts at issue therefore the facts herein were issue herein decided at already decided were already arbitration. Additionally, Respondent arbitration. Additionally, that Petitioner states that Respondent states initial request Petitioner filed an initial with the request with York State New York the New State Attorney General Attorney wherein he admitted General wherein the vehicle leasing the admitted to leasing and conceded vehicle a_nd that the conceded that contained a lease contained the lease provision for provision for excess excess wear wear and and tear. tear. Respondent states Petitioner Respondent states declined to answer Petitioner declined he received whether he answer .whether received any notices any notices but but did did admit admit that that he did did not obtain his not obtain own appraisal his own because he appraisal because was denied he was access to the denied access vehicle after vehicle after its return and stated return and while there that while stated that was damage there was damage present on the Subject present on Vehicle, Respondent Subject Vehicle, Respondent not believe did not believe the damage was excessive. damage was excessive.

CPLR 77511 CPLR provides that provides that a Plaintiff Plaintiff can vacate an arbitration petition to vacate can file a petition if the court award if arbitration award finds that finds that the rights rights of of that that party party were by: (i) corruption, prejudiced by: were prejudiced fraud or corruption, fraud procuring the misconduct in procuring or misconduct award; or award; or (ii) partiality partiality of of an an arbitrator appointed as a neutral, arbitrator appointed except where neutral, except the award where the by confession; was by award was or (iii) an arbitrator, or or agency arbitrator, or or person agency or making the person making award exceeded the award his power exceeded his imperfectly executed or so imperfectly power or that a final it that final and and definite award upon definite award subject matter upon the subject submitted was matter submitted not made; was not or (iv) made; or failure to follow (iv) failure the procedure of this procedure of this article, article, unless the party unless the party applying vacate the applying to vacate award continued the award continued with the arbitration with the arbitration notice of with notice of the defect without objection. and without defect and review ofarbitration Judicial review objection. Judicial extremely limited awards is extremely of arbitration awards

(Wien & Malkin Malkin LLP Helmsley-Spear, Inc., 6 N.Y.3d LLPvv Helmsley-Spear, [2006]; Tauberv N.Y.3d 471 (2006]; 216AD.3d 1066 [2d Tauber v Gross, 216A.D.3d Dept. 2023]; Dept. Moloney, 164 A.D.3d see Jurcec v MolonEY, 2023]; seeJurcec 2018]). Pursuant Dept. 2018]).

AD.3d 1434 [2d Dept. CPLR 751 Pursuant to CPLR l(b)(l),aa 7511(b)(l), court may court vacate an award may vacate violates a strong when it violates award when public policy, strong public irrational or policy, is irrational exceeds a clearly exceeds or clearly specifically enumerated specifically on an arbitrator's limitation on enumerated limitation arbitrator's power. party seeking power. A party overturn anarbitrationawanl seeking to overturn an arbitration award one or on one or more grounds stated more grounds CPLR 7511 stated in CPLR XI) bears 7511 (b XI) burden of bears the burden ground for establishing a ground of establishing for vacatur by clear and by clear and convincing convincing evidence evidence [Tauber A.D.3d 742 1068; Matter of Denaro v Cruz, 15 AD.3d [Tauber at 1068;Mattero/Denaro Dept [2d Dept 2014]; see Jurcec 2014]; see AD.3d 1431 [2d Moloney, 164 A.D.3d Jurcec v Moloney, Dept. 20181). [2d Dept. "Courts are 2018]). "Courts by an arbitrator's bound by are bound arbitrators factual interpretation of findings, interpretation factual findings, oftheeontract concerning remedies. judgment concerning the , contract and judgment . cannot examine court cannot remedies. A court the merits merits of of an arbitration arbitration award and substitute award and judgment for substitute its judgment that of for that the arbitrator of the simply because arbitrator simply because it believes its interpretation believes interpretation would would be the better be the circumstances where Even in circumstances better one. Even makes errors arbitrator makes where an arbitrator of law or of or fact, fact, courts courts will will not assume the role not assume overseers to conform of overseers role of the award conform the sense of their sense award to their justice" of justice" (Jewish Press, (Jewish Press, Inc. v Meltzer, Meltzer, Lippe, Goldstein & Breitstone, Lippe, Goldstein AD3d 594, LLP, 221 AD3d Breitstone, LLP, 2023]; Vil of [2dDept 2023]; 594, (2dDept of Spring Val. v Civ. Servo Spring Val. Serv. Employees Inc., 214 Assn., Inc., Employees Assn., AD3d 818, 820 AD3d Dept 2023]; [2d Dept Matter of 2023 ]; Matter New York of New State Correctional State Police Benev. and Police Officers and Correctional Officers Benev. Ass'n, State, 94 NY2d Ass'n, Inc. v State, 325 (1999]).

321, 325 NY2d 321, [1999]).

Here, the Here, the court court finds that that Petitioner failed to meet Petitioner has failed of establishing burden of meet his burden the Arbitrator that the establishing that exceeded her exceeded power or her power executed it that imperfectly executed or so imperfectly final and that a final definite award and definite subject matter upon the subject award upon not made. submitted was not submitted moving has Petitioner, in moving made. The Petitioner, establish by failed to establish has failed convincing evidence clear and convincing by clear that award should arbitration award that the arbitration be vacated should be on the vacated on ground that the ground rights were that its rights were prejudiced by the arbitrator's prejudiced by arbitrators failure to follow failure follow proper proper procedure (see NRTNew procedure (see Arromand, 216 LLC v St. Arromand, NRT New York, LLCv AD3d 641,642 [2d 216AD3d641,642 Dept [2dDept 2023]) oron 2023]) any other or on any ground pursuant other ground CPLR 751 pursuant to CPLR her decision, (b). In her 7511l{b). decision, the Arbitrator found(l) the Arbitrator found (1) that there was there damage to the was damage which a claim item(s) for which the item(s) was made for excess claim was wear and excess wear damage to the leased tear damage and tear vehicle, (2) thatthe vehicle, thatthe item item claimed leased vehicle damage to the leased claimed as damage was in excess vehicle was of wear excess of tear damage and tear wear and and was and was not not the result result ofnormal wear and of normal wear damage, (3) and damage, that the lessor (3) that did provide lessor did the lessee provide the with the requisite lessee with notice of notice of the lessee's lessee's rights rights with respect to excess with respect wear and excess wear damage claim, and damage that a preliminary and (4) that claim, and preliminary estimate was estimate was provided. issues raised provided. The issues by Petitioner raised by were already action were Petitioner in this action decided by the heard and decided already heard Arbitrator.

Arbitrator. With With respect respect to the the summary of evidence summary of evidence presented at arbitration presented at arbitration the Arbitrator states the Arbitrator states that Schwimmer. ... "Cheskel Schwimmer "Cheskel ..returned the vehicle returned the 2022, to the dealership October 7, 2022, vehicle on October month lease after a 6 month dealership after the pre-return extension. He did not do the extension. inspection with pre-return inspection licensed appraiser, with a licensed relied on the dealership and appraiser, he relied the WearCare the WearCare red red carpet carpet lease lease addendum, covers up to $ 10,000 that covers addendum, that of 'wear 10,000 of tear' damage. and tear' 'wear and damage. On December 10, December 10,2022, he received 2022, he invoice from received an invoice for $ 17,175.03.

Lincoln for$ from Lincoln called the body Schwimmer called 17,175.03. Mr. Schwimmer shop and shop and was was told told that that the the damage accident and due to an accident damage is due mu st be handled andmustbe by his handled by insurance company. his insurance WearCare is not WearCare applicable for not applicable damage. Mr. Schwimmer that damage. for that does not Schwimmer does agree that not agree invoice is legitimate the invoice that the label the car to label car 'an 'an accident accident car."' car. Additionally, If'Additionally, the the Arbitrator states that Arbitrator states submitted 59 pages Respondents submitted that Respondents ofrelevant documents including of relevant documents copies of including copies ofthe original and the original lease; the extension lease; and extension Red Carpet the Red Carpet Lease Weai:Care Lease WearCare

Estimate. Contrary Contrary to the Petitioner's Petitioner's contention, contention, there there is evidentiary evidentiary support support for for the arbitration arbitration award, and "it award, and it was was not not irrational. irrational.

Accordingly, Accordingly, it is hereby, hereby, ORDERED, ORDERED, that that Petitioner's Petitioner's motion motion (Motion (Motion Seq. 1) I) to vacate vacate the arbitration arbitration award award dated dated March 24, 24, 2023, 2023, is denied. denied.

This This constitutes constitutes the the decision decision and and order order of of the court. court.

t(

Hon. lni1}.eph J.S.C.