Opinion
May 18, 1995
Appeal from the Supreme Court, New York County (Edward Greenfield, J.).
In light of the fact that defendant only appealed from the court's February 1991 order and judgment to the extent that it denied its cross-motion to modify the interest portion of the April 16, 1990 arbitration award (which appeal has since been effectively abandoned by defendant), and never appealed the court's confirmation of the arbitration award, the 1991 order and judgment, insofar as it confirmed the arbitration award which expressly determined how wage rate escalation "shall" be computed for "1980, 1981, and years thereafter" (emphasis added), is a final order and judgment. When defendant, in May 1991, served plaintiff a wage escalation bill utilizing the method the arbitrators and court specifically prohibited, defendant was in defiance of the court's February 1991 order and judgment. Accordingly, the court's grant of injunctive relief, enjoining defendant from disobeying the court's prior order and judgment, was patently proper. (See, Matter of Hunter [Proser], 274 App. Div. 311, 312, affd 298 N.Y. 828.)
While defendant attempts to argue that the arbitration award should be denied any effect beyond one year, he is precluded from raising said argument. These are some of the arguments the court considered and rejected in its 1991 confirmation order and judgment which has res judicata effect as between the instant parties (see, Morgan Guar. Trust Co. v Solow, 114 A.D.2d 818, 823, affd 68 N.Y.2d 779). Defendant is not permitted to force plaintiff to rearbitrate the same dispute that has already been definitively resolved against defendant for all years.
Defendant's post-judgment motions, which essentially concern alleged arbitral bias, styled in many different forms (e.g., motion to vacate the award, motion to vacate a court judgment confirming the award, and a motion seeking renewal or reargument of prior motions), and which all seek to challenge the merits of the February 1991 confirmation order and judgment, are time barred by CPLR 7511 (a) (see, 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 5015.01, at 50-300; see also, Karlan Constr. Co. v Burdick Assocs. Owners Corp., 166 A.D.2d 416, 416-417; Kwasnik v Willo Packing Co., 61 A.D.2d 791; 1000 Second Ave. v Pauline Rose Trust, 171 A.D.2d 429). Quite apart from defendant's failure to comply with the 90-day time limit prescribed by CPLR 7511 (a), he also failed to satisfactorily demonstrate that any of the so-called newly discovered evidence was unavailable to him at the time of the motion to confirm the arbitration award (see, Foley v Roche, 68 A.D.2d 558, 568). Finally, we observe that defendant failed to show that any of the alleged biases of the neutral arbitrator prejudiced defendant (see, Rose v Lowrey Co., 181 A.D.2d 418, 419).
We have considered all other claims raised by the parties and find them to be meritless; indeed defendant's arguments border on the frivolous.
Concur — Murphy, P.J., Ellerin, Kupferman, Ross and Mazzarelli, JJ.