Opinion
April 20, 1971
Order, Supreme Court, New York County, entered May 8, 1970 granting petitioner's application to vacate an arbitration award dated November 5, 1969 and denying respondent-appellant's application to confirm the award, is unanimously reversed on the law and the facts, the application to vacate the award is denied and the application to confirm the award is granted. Appellant shall recover of respondent $30 costs and disbursements of this appeal. Petitioner sought to vacate the arbitrator's award based upon the alleged misconduct of the arbitrators. Basically, it is petitioner's position that the arbitrators acted improperly in refusing to consolidate the subject arbitration with a related arbitration, thus prejudicing petitioner in that such might result in inconsistent awards subjecting petitioner to double liability. Additionally, it is petitioner's contention that the failure to consolidate arose as a result of the decision of a clerk employed by the American Arbitration Association and that the arbitrators' action in blindly following the clerk's ruling constituted an impermissible delegation of powers (see Building Serv. Employees Int. Union, Local 32B A.F. of L. v. Filene Holding Corp., 43 N.Y.S.2d 309). The record however, fails to substantiate any of the petitioner's contentions, and reveals no misconduct of the arbitrators however broadly such term might be construed. Petitioner was the general contractor for construction of a building for the Dominican Sisters pursuant to a contract containing a provision for arbitration. Respondent-appellant was engaged by petitioner (pursuant to a written agreement containing an arbitration clause) as subcontractor for installation of air conditioning and related systems. It appears that disputes arose between the parties and that petitioner failed to make payments of about $30,000 allegedly due by it to the appellant. Petitioner claimed that the failure to make the payments arose from complaints by the Dominican Sisters concerning appellant's work, and that the Sisters had withheld payments to petitioner based upon such complaints. In March, 1969 appellant demanded arbitration of the controversy between it and petitioner. The American Arbitration Association assigned a case number. In early April, 1969, petitioner demanded arbitration of the Dominican Sisters and certain suppliers, intending that there be one inclusive arbitration involving all parties. Appellant did not object to such procedure. However, by letter dated April 29, 1969, the petitioner wrote the American Arbitration Association stating that the proceedings should be treated as separate arbitrations and further stated that appellant agreed "to a brief delay" in the subject arbitration "so that perhaps the Dominican Sisters * * * will agree to a consolidation of the proceedings". About one month later, appellant's counsel wrote the Association concerning the delay and requesting that unless steps had been taken to expedite the additional arbitrations the arbitration between respondent-appellant and petitioner be scheduled for a hearing. Thereafter, by letter dated July 3, 1969, the Association wrote the parties stating that: "Inasmuch as consolidation proceedings have been ineffective, the Association is proceeding to appoint the Arbitrators in the above-captioned matter." (The arbitration between petitioner and respondent.) After subsequent communications, a hearing date was scheduled for October 21, 1969. On that date the parties appeared and it is alleged that the Arbitrators denied an application for an adjournment sine die to allow consolidation to take place. However, pursuant to petitioner's request an adjournment was granted in order that petitioner might secure the attendance as witnesses of various parties including the Dominican Sisters. Subsequently, hearings were held and it appears from the record that the Dominican Sisters attended and testified and that petitioner fully participated. As indicated, the Arbitrators decided in favor of respondent-appellant. Based upon the above, we can perceive no misconduct on the part of the Arbitrators. The decision of the Arbitrators on October 21, 1969 in denying further adjournment to effect a consolidation must be considered in light of all that preceded. Arbitration was first demanded on March 14, 1969 and appellant consented to possible consolidation as early as April 8, 1969. But, petitioner does not shed any light as to what steps, if any, it took to effect a consolidation. It does not appear that the petitioner applied to the court for consolidation or for a stay of the subject arbitration although it knew by virtue of the letter of July 3, 1969 that it was intended that the arbitration was to proceed without consolidation. Moreover, there was opportunity between October 21, 1969 and October 31, 1969, the adjourned date set for the hearing to enable petitioner to seek relief, but it did not do so, and instead fully participated in the hearing subsequently had. It would thus appear that petitioner was given every opportunity to effect a consolidation but simply did not do so. Nor does the record support a finding that the Arbitrators' action in refusing further adjournment to allow petitioner to effect consolidation was based merely on the Arbitrators' deference to the decision of the clerk and therefore constituted misconduct. The record is devoid of any factual showing that the Arbitrators did not consider the motion on its merits, and as above discussed, the Arbitrators' decision certainly rested on substantial reason. In all, we find that the arbitration award was not shown to be improper in any manner. It does not appear that the Arbitrators failed to hear any pertinent or material evidence; and the award was complete as to those who were actual parties to the proceeding.
Concur — Stevens, P.J., Capozzoli, Markewich, Tilzer and Eager, JJ.