Opinion
2013-03-21
BANC OF AMERICA SECURITIES, LLC, Plaintiff–Respondent, v. SOLOW BUILDING COMPANY II, LLC, Defendant–Appellant, Bank of America Corporation, Additional Defendant on Counterclaim.
Lowenstein Sandler LLP, New York (Jeffrey J. Wild of counsel), for appellant. Davis Polk & Wardwell, New York (Robert F. Wise, Jr. of counsel), for respondent.
Lowenstein Sandler LLP, New York (Jeffrey J. Wild of counsel), for appellant. Davis Polk & Wardwell, New York (Robert F. Wise, Jr. of counsel), for respondent.
Judgment, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered May 1, 2012, awarding plaintiff the total amount of $6,670,547.95, pursuant to an order, same court and Justice, entered March 7, 2012, which granted plaintiff's motion to confirm an arbitration award dated October 11, 2011, and denied defendant's cross motion to vacate the award, unanimously affirmed, with costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The arbitrator's construction of the term “remain,” found in a schedule to the parties' settlement agreement, as meaning simply to remain physically in place, and not necessarily unchanged, was not irrational ( see Maross Constr. v. Central N.Y. Regional Transp. Auth., 66 N.Y.2d 341, 346, 497 N.Y.S.2d 321, 488 N.E.2d 67 [1985] ). Nor was the arbitrator's finding that plaintiff did not cut any backbone cabling, as it was based on plausible credibilitydeterminations ( see Kalyanaram v. New York Inst. of Tech., 79 A.D.3d 418, 419–420, 913 N.Y.S.2d 159 [1st Dept. 2010],lv. denied17 N.Y.3d 712, 933 N.Y.S.2d 652, 957 N.E.2d 1156 [2011];Matter of Haynes v. New York City Dept. of Homeless Servs., 27 A.D.3d 330, 332, 812 N.Y.S.2d 483 [1st Dept. 2006] ).