Kalyanaram v. New York Institute of Technology , 936 N.Y.2d 543 ( 2012 )

There is no right of appeal from an order that does not determine a motion on notice (CPLR 5701 [a] [2]; see Sholes v Meagher, 100 NY2d 333 [2003]), including an order declining to sign an order to show cause (see Naval v American Arbitration Assn., 83 AD3d 423 [2011]) and a judgment entered upon such an order (see Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73 [2004]). In light of the evident lack of merit to the appeal, we decline to grant leave to appeal.

Petitioner’s assertion that disputes as to performance of the remedy provisions of the arbitration award should be determined by the arbitrator is without merit. Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514), and the arbitrator is functus officio, without power to amend or modify the final award (see Matter of Hanover Ins. Co. v American Intl. Underwriters Ins. Co., 266 AD2d 545 [1999]). In any event, petitioner failed to identify any provision of the final award that was violated by respondent. Concur — Andrias, J.E, Sweeny, Moskowitz, Renwick and Freedman, JJ.