Opinion
2017–11800 2018–03363 Index No. 51103/17
02-19-2020
In the Matter of Victor DEDVUKAJ, Respondent, v. Robert SHKRELI, Appellant.
Joseph A. Altman, P.C., Bronx, NY, for appellant. Arnold E. DiJoseph, P.C., New York, NY, for respondent.
Joseph A. Altman, P.C., Bronx, NY, for appellant.
Arnold E. DiJoseph, P.C., New York, NY, for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated December 13, 2016, Robert Shkreli appeals from (1) an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated July 11, 2017, and (2) a judgment of the same court dated October 19, 2017. The order granted the petition to confirm the arbitration award. The judgment, upon the order, is in favor of the petitioner and against Robert Shkreli in the principal sum of $803,988.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the petitioner.
The appeal from the order dated July 11, 2017, must be dismissed because the right of direct appeal therefrom terminated upon the entry of the judgment (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on 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] ). In April 2014, Victor Dedvukaj and Robert Shkreli entered into an exclusive right to sell agreement (hereinafter the agreement). Pursuant to the agreement, Dedvukaj agreed to serve as the exclusive agent to sell five properties. The list price for the properties was to be $26,000,000, and Dedvukaj was to receive 3 percent of the selling price as a commission. Any claims or disputes that arose from the agreement were to be arbitrated. In April 2015, Dedvukaj served a demand for arbitration on Shkreli, seeking to recover $780,000 as commission under the agreement. Shkreli did not appear at the arbitration hearings, but was represented by counsel. In December 2016, the arbitrator directed Shkreli to pay Dedvukaj, inter alia, $780,000 with statutory interest thereon.
In January 2017, Dedvukaj commenced this proceeding pursuant to CPLR article 75 to confirm the arbitration award. Shkreli opposed the petition on the ground, inter alia, that the award was irrational. In an order dated July 11, 2017, the Supreme Court granted the petition to confirm the arbitration award. Subsequently, judgment was entered in favor of Dedvukaj and against Shkreli in the principal sum of $803,988. Shkreli appeals.
"Judicial review of arbitration awards is extremely limited" ( Kotlyar v. Khlebopros, 176 A.D.3d 793, 795, 109 N.Y.S.3d 449 ; see Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d 471, 479, 813 N.Y.S.2d 691, 846 N.E.2d 1201 ). Courts may vacate an arbitration award only on the grounds stated in CPLR 7511(b). One such ground is that the arbitrator exceeded his or her power (see CPLR 7511[b][iii] ). "Such an excess of power occurs only where the arbitrator's award (1) violates a strong public policy, (2) is irrational, or (3) clearly exceeds a specifically enumerated limitation on the arbitrator's power" ( Matter of Local 342 v. Town of Huntington, 52 A.D.3d 720, 721, 860 N.Y.S.2d 607 ). "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one" ( Matter of New York State Correctional Officers & Police Benevolent Assn. v. State of New York, 94 N.Y.2d 321, 326, 704 N.Y.S.2d 910, 726 N.E.2d 462 ; see Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d at 479–480, 813 N.Y.S.2d 691, 846 N.E.2d 1201 ; Matter of Liberty Mut. Ins. Co. v Sedgewick of N.Y., 43 A.D.3d 1062, 1063, 842 N.Y.S.2d 68 ).
An arbitration award is irrational only where there is no evidence whatever to justify the award, or where the award gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties (see Matter of Reddy v. Schaffer, 123 A.D.3d 935, 937, 1 N.Y.S.3d 123 ; Matter of Matra Bldg. Corp. v. Kucker, 2 A.D.3d 732, 734, 770 N.Y.S.2d 367 ). Here the arbitrator's determination was supported by evidence in the record, and was not irrational (see Matter of Barrella v. State of New York Off. of Mental Health, 175 A.D.3d 495, 496, 103 N.Y.S.3d 853 ; Matter of Fagan v. Village of Harriman, 140 A.D.3d 868, 869, 33 N.Y.S.3d 401 ; Matter of Reddy v. Schaffer, 123 A.D.3d at 937, 1 N.Y.S.3d 123 ).
Shkreli's contention that the arbitration award violates strong public policy underlying the requirements in Real Property Law § 442–d, raised for the first time on appeal, is not properly before this Court (see Matter of Bart v. Miller, 302 A.D.2d 379, 380, 754 N.Y.S.2d 559 ; see also Matter of County of Suffolk v. Faculty Assn. of Suffolk County Community Coll., 247 A.D.2d 472, 472, 668 N.Y.S.2d 98 ).
The parties' remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination granting the petition to confirm the arbitration award.
MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.