Opinion
Index No. 159280/2019 Motion Seq. No. 009
12-09-2022
GARY M. GOLDBERG, Plaintiff, v. BRUDERMAN BROTHERS, LLC, BRUDERMAN ASSET MANAGEMENT, LLC, JAMES M. BRUDERMAN, and MATTHEW J. BRUDERMAN, Defendants.
Unpublished Opinion
MOTION DATE 06/01/2022.
PRESENT: HON. LOUIS L. NOCK, Justice.
DECISION + ORDER ON MOTION
LOUIS L. NOCK, J.
The following e-filed documents, listed by NYSCEF document numbers (Motion 009) 113,114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, and 142 were read on this motion to CONFIRM ARBITRATION AWARD.
Upon the foregoing documents, it is ORDERED that defendants' motion to confirm the arbitration award entered in Bruderman Bros., LLC & Bruderman Asset Management LLC v Gary M. Goldberg, GMG2 Corp., & GMG1 Corp., JAMS Reference No. 1425030879, dated May 20, 2022, in which the arbitrator, Hon. Shirley Werner Kornreich (J.S.C., Ret.): (i) found that plaintiff Gary M. Goldberg ("plaintiff) was discharged by defendants for cause and that plaintiff is bound by certain restrictive covenants preventing competing with defendants or soliciting their business; and (ii) awarded damages to defendants, is granted and the award is confirmed, and plaintiffs motion to modify or vacate the award is denied, for the reasons set forth in the moving and reply papers (NYSCEF Doc. Nos. 114, 124, 139), and the exhibits attached thereto, in which the court concurs.
A court shall confirm an arbitration award unless vacated or modified upon a ground specified in CPLR 7511 (CPLR 7510; Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 A.D.3d 1, 3 [1st Dept 2009]). The grounds specified for modification do not apply here. Where the party seeking to vacate the award either received notice of or participated in the arbitration, the court may only vacate the award on a finding of "corruption, fraud or misconduct," partiality of the arbitrator, the arbitrator exceeded his or her power or failed to render a final and definite award, or failed to follow the procedure of Article 75 of the CPLR (CPLR 7511 [b][l][i-iv]). An arbitrator exceeds his or her power where the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Ass'n, 78 N.Y.2d 33, 37 [1991]). "It is well settled that judicial review of arbitration awards is extremely limited" and "[a]n arbitration award must be upheld when the arbitrator offers even a barely colorable justification for the outcome reached" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 N.Y.3d 471, 479 [internal quotation marks and citation omitted], cert denied 548 U.S. 940 [2006]).
Plaintiff posits that the award has no basis in the factual record before the arbitrator. But this court finds that the detailed, extensive, and thoughtful decision of the arbitrator is well supported by the arbitration record (see, Arbitration Award, NYSCEF Doc. No. 122). A court determining whether to confirm, modify, or vacate an award is not empowered to reassess the evidence heard by the arbitrator (Matter of Peckerman v D & D Assoc, 165 A.D.2d 289, 296 [1st Dept 1991] ["assessment of the evidence presented at an arbitration proceeding is the arbitrator's function rather than that of the court"]). Thus, even were this court to accept plaintiffs position that the arbitrator did not properly weigh and interpret defendants' expert evidence, such is not a basis for this court to vacate the award given that there is a more than colorable justification for the arbitrator's decision (Wein & Malkin LLP, 6 N.Y.3d at 479). Plaintiff offers no meritorious ground upon which to modify or vacate the award; nor does he challenge the equitable relief endorsed by the arbitrator in enforcing the non-competition and non-solicitation clauses of the agreements between the parties (Asset Purchase Agreements, NYSCEF Doc. Nos. 116, 117, § 6.09); and it is further
Plaintiff takes issue with how the arbitrator weighed and interpreted the report of defendants' expert as to defendants' damages.
ADJUDGED and DECLARED that plaintiff Gary M. Goldberg was terminated for cause from his employment with defendants Bruderman Brothers LLC and Bruderman Asset Management LLC; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendants Bruderman Brothers LLC and Bruderman Asset Management LLC and against plaintiff Gary M. Goldberg in the amount of $15,624,214.06, with interest accruing thereon at the statutory rate from May 20, 2022, through the date of entry of judgment as calculated by the Clerk, and continuing to accrue thereafter at the statutory rate until the date of satisfaction of judgment, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendant James M. Bruderman and against plaintiff Gary M. Goldberg in the amount of $50,000, with interest accruing thereon at the statutory rate from May 20, 2022, through the date of entry of judgment as calculated by the Clerk, and continuing to accrue thereafter at the statutory rate until the date of satisfaction of judgment, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendant Matthew J. Bruderman and against plaintiff Gary M. Goldberg in the amount of $50,000, with interest accruing thereon at the statutory rate from May 20, 2022, through the date of entry of judgment as calculated by the Clerk, and continuing to accrue thereafter at the statutory rate until the date of satisfaction of judgment, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ADJUDGED and DECLARED that no further payments, either principal or interest, are due to plaintiff Gary M. Goldberg under the promissory note dated January 2, 2015; and it is further
ORDERED that, until April 8, 2023, plaintiff Gary M. Goldberg is enjoined and restrained, from doing or suffering to be done, directly or through any attorney, agent, servant, employee or other person under the supervision or control of plaintiff or otherwise, any of the following acts:
(i) engaging in or assisting others in engaging in any business that is competitive with, or is in a field of business substantially similar to, a registered broker-dealer, or any mergers and acquisitions advisory services, in the United States of America; or
(ii) owning an interest in any corporation, partnership, joint venture, limited liability company, unincorporated organization, trust, association or other entity that engages directly or indirectly in any business that is competitive with, or is in a field of business substantially similar to, a registered broker-dealer, or any mergers and acquisitions advisory services, in the United States of America in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or
(iii) offering to provide or providing investment advice directly to individuals in face-to-face meetings, by telephone, or by video; or
(iv) broadcasting or distributing any episode, version or podcast of Money Matters with Gary Goldberg recorded after the date of this order that includes any advertisement, contact information, or telephone number for any registered broker-dealer;
and it is further
ORDERED that, until March 12, 2026, plaintiff Gary M. Goldberg is enjoined and restrained, from doing or suffering to be done, directly or through any attorney, agent, servant, employee or other person under the supervision or control of plaintiff or otherwise, any of the following acts:
(i) causing, inducing or encouraging any actual or prospective client, customer or supplier of Bruderman Brothers LLC or Bruderman Asset Management LLC (including any existing or former client or customer of Gary M. Goldberg or GMG1 Corp. or GMG2 Corp.), or any other individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity who has a business relationship with Bruderman Brothers LLC or Bruderman Asset Management LLC, to terminate or modify any such actual or prospective relationship; or
(ii) soliciting, or providing any service to, any individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity who has a business relationship with Bruderman Brothers LLC or Bruderman Asset Management LLC; or
(iii) directly or indirectly hiring or soliciting any person who is or was employed by Bruderman Brothers LLC or Bruderman Asset Management LLC; or
(iv) providing any broker-dealer services to any individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity who is or was a client of Bruderman Brothers LLC or Bruderman Asset Management LLC;
and it is further
ORDERED that plaintiff Gary M. Goldberg is permanently enjoined and restrained, from doing or suffering to be done, directly or through any attorney, agent, servant, employee or other person under the supervision or control of plaintiff or otherwise, any of the following acts: directly or indirectly, using, including under the doctrine of fair use, the name "Gary Goldberg" or any name that is confusingly similar thereto or reminiscent thereof in connection with any broker-dealer services or in any manner that would, or is reasonably likely to, indicate or imply any association with any broker-dealer.
This constitutes the decision and order of the court.