Henegan Construction Co. v. Bettinger & Leech, Inc. ( 1993 )

Resettled order and judgment (one paper), Supreme Court, New York County (Irma Vidal Santaella, J.), entered April 23, 1992, inter alia, confirming an arbitration award in favor of plaintiff, unanimously affirmed, with costs.

Defendant failed to meet its "heavy burden” of demonstrating arbitrator misconduct "by clear and convincing proof’ (Matter of Dember Constr. Corp. [New York Univ.], 190 AD2d 537; Matter of Disston Co. [Aktiebolag], 176 AD2d 679, lv denied 79 NY2d 757). CPLR 7505 authorizes an attorney in an arbitration proceeding to issue subpoenas, and defendant can hardly complain that the arbitrator was guilty of misconduct because he did not do what its attorney could have done on his own initiative. As for defendant’s other contention that the arbitrator refused to hear pertinent testimony, not only has defendant failed to provide any evidence in support thereof, but there is no indication that defendant ever objected to the arbitrator’s rulings prior to submitting its cross-motion to vacate the award. Concur—Murphy, P. J., Sullivan, Kupferman and Nardelli, JJ.