Opinion
April 25, 1994
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, the order entered February 14, 1992, is vacated, and the cross motion is granted; and it is further,
Ordered that the appellants are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
Contrary to the finding of the Supreme Court, attorneys' fees may not be recovered in an arbitration proceeding unless they are expressly provided for in the arbitration agreement (see, CPLR 7513; CBA Indus. v Circulation Mgt., 179 A.D.2d 615, 616; Grossman v Laurence Handprints-N.J., 90 A.D.2d 95, 101; Matter of Konigsberg [Zinn-Froessel], 51 A.D.2d 929, 930; see also, Hooper Assocs. v AGS Computers, 74 N.Y.2d 487, 490; cf., Matter of Lepercq Deneuflize Co. v Helmsley Enters., 198 A.D.2d 147). Accordingly, because the agreements of the parties failed to provide for attorneys' fees, the arbitrators exceeded the scope of their powers by awarding the petitioners their attorneys' fees (see, CPLR 7511 [c] [2]; 7513; Matter of Board of Educ. v Dover-Wingdale Teachers' Assn., 61 N.Y.2d 913).
In any event, we note that in their post-hearing papers, the petitioners sought attorneys' fees to punish the respondents for their behavior during arbitration, a fact which was recognized by the Supreme Court. As a result, the award violated public policy because it was solely punitive in nature (see, Garrity v Lyle Stuart, Inc., 40 N.Y.2d 354, 356-357). Sullivan, J.P., O'Brien, Goldstein and Florio, JJ., concur.