Opinion
No. 654861/2021
11-21-2022
ALEKSANDAR ZUNZUROVSKI, Plaintiff, v. JACARANDA CLUB, LLC, DAVID MICHAEL TALLA Defendant.
Unpublished Opinion
MOTION DATE 08/09/2021
PRESENT: HON. FRANK P. NERVO Justice
DECISION + ORDER ON MOTION
Frank P. Nervo, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 88 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT .
The Court has reviewed the papers submitted in this matter along with the on-the-record argument of October 7, 2022 (NYSCEF Doc. No. 91).
CPLR § 7511 provides that within 90 days of service of an arbitrator's award, a party may seek to vacate the award where the party's rights were prejudice by (i.) corruption or fraud, (ii) partiality of the arbitrator, (iii) an arbitrator acting in excess of their authority or imperfectly executing their authority such that the final award did not address the subject of the arbitration proceedings, or (iv) by the arbitrator's failure to follow the procedures of Article 75 of the CPLR. Likewise, where a strong public policy is violated by the award or the award is irrational, vacatur is proper (In Re Falzone (New York Cent. Mut. Fire Ins. Co.), 15 N.Y.3d 530 [2010]). These grounds are exclusive and narrowly applied, "Courts are reluctant to disturb the decisions of arbitrators lest the value of this method of resolving controversies be undermined" (Goldfinger v. Lisker, 68 N.Y.2d 225 [1986]; see also Geneseo Police Benevolent Assn. v. Village of Geneseo, 91 A.D.2d 858 [4th Dept 1982] aff'd 59 N.Y.2d 726 [1983]). Consequently, errors of law or fact do not form a basis to vacate an arbitrator's award (Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 N.Y.3d 471 [2006]; Transport Workers' Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332 [2005]). "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached" (Susan D. Settenbrino, P.C. v. Barroga-Hayes, 89 A.D.3d 1094 [2d Dept 2011] quoting Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 N.Y.3d at 479 [internal quotation removed]).
Here, petitioner seeks to partially confirm and partially disapprove an arbitration award comprising nearly 70 pages issued after significant hearings, post-hearing briefing, and post-decision briefing. However, as elucidated at on-the-record argument, no authority for this relief has been provided (see oral argument transcript of October 7, 2022). As discussed, supra, CPLR §7511 provides that the Court may modify an award but does not provide for partial confirmation and partial vacatur, as sought in this application. To the extent that petitioner seeks relief stylized as modification of the award pursuant to CPLR § 7511, modification of an arbitration award under § 7511 is limited and may not affect the merits of the controversy (CPLR § 7511 [c]; In re New York State Nurses Ass'n (Nyack Hosp.), 258 A.D.2d 303 [1st Dept 1999]; see also Wendt v. BondFactor Co., LLC, 169 A.D.3d 808 [2d Dept 2019] finding that CPLR § 7509 precludes modification of an award except as listed under CPLR § 7511[c]). "Where, as here, issues have been properly placed before an arbitrator, 'questions of law and fact are merged in the award and are not within the power of the judiciary to resolve'" (In re New York State Nurses Ass'n (Nyack Hosp.), 258 A.D.2d 303 quoting Matter of Binghamton Civ. Serv. Forum v. City of Binghamton, 44 N.Y.2d 23, 28 [1978]).
Consequently, the Court finds the relief sought by petitioner, partial confirmation and partial vacatur, is unavailable; to the extent such relief is classified as a modification, the Court further finds it cannot modify the merits of the award, as sought by petitioner. Ordinarily, where the Court denies vacatur of an arbitration award it must confirm same (CPLR § 7511[e]; see also Matter of Board of Educ. of Ardsley Union Free School Dist., Town of Greenburgh v. Ardsley Congress of Teachers, 78 A.D.2d 879 [2d Dept 1975]). Here, however, as the petition seeks improper relief, and respondents unequivocally stated on the record that they were not seeking to confirm the award, the Court declines to approve the arbitration award.
Assuming, arguendo, that the Court enjoyed the authority to partially confirm and partially vacate an arbitration award, as petitioner contends, the Court would nevertheless find the arbitration award does not violate a strong public policy and decline vacatur on this basis. Likewise, to the extent petitioner alleges the award is not supported by the evidence, the low threshold that the arbitration award need only be supported by a colorable justification is met here.
Accordingly, it is
ORDERED that the petition is dismissed as seeking improper relief not available; and it is further
ORDERED that, not having reached the merits of the award, the award is neither confirmed nor disapproved.