2d 840.) II. The Independent Auditor's failure to apply a Non-Participating Manufacturer adjustment on a provisional basis in March 2004 is not arbitrable. ( Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39.) Kirkland Ellis LLP, Chicago, Illinois and New York City ( Stephen R. Patton, Peter A. Bellacosa and Douglas G. Smith of counsel), DLA Piper Rudnick Gray Cary US LLP, New York City ( Alexander Shaknes of counsel), and Weil, Goshal Manges LLP (Penny P. Reid of counsel) for Philip Morris Incorporated and others, defendants. I. The Appellate Division correctly held that the plain language of the Master Settlement Agreement requires that the present dispute be arbitrated. ( Collins Aikman Prods. Co. v Building Sys., Inc., 58 F3d 16; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; Pearl St. Dev. Corp. v Conduit Found. Corp., 41 NY2d 167; Fleet Tire Serv. Of N Little Rock v Oliver Rubber, 118 F3d 619; Matter of Potoker [Brooklyn Eagle], 286 App Div 733; CBA Indus, v Circulation Mgt., 179 AD2d 615; Ross Bros. Constr. Co., Inc. v International Steel Servs., Inc., 283 F3d 867; Coregis Ins. Co. v American Health Found., Inc., 241 F3d 123; CD Partners, LLC v Grizzle, 424 F3d 795; Vermont Pure Holdings, Ltd. v Descartes Sys. Group, Inc., 140 F Supp 2d 331.) II. The Appellate Division correctly held that the structure of the Master Settlement Agreement's payment provisions compels arbitration.
As a general matter, attorneys' fees may not be recovered in an arbitration proceeding unless they are expressly provided for in the arbitration agreement ( seeCPLR 7513; Berg v. Berg, 85 A.D.3d 950, 952, 926 N.Y.S.2d 568;Myron Assoc. v. Obstfeld, 224 A.D.2d 504, 638 N.Y.S.2d 154;Matter of MKC Dev. Corp. v. Weiss, 203 A.D.2d at 573–574, 612 N.Y.S.2d 946;CBA Indus. v. Circulation Mgt., 179 A.D.2d 615, 616, 578 N.Y.S.2d 234; Grossman v. Laurence Handprints–N.J., 90 A.D.2d 95, 101, 455 N.Y.S.2d 852). If the parties' agreement does not provide for an award of attorneys' fees, then an arbitrator who awards an attorney's fee has exceeded the scope of his or her powers ( seeCPLR 7511[c][2]; MKC Dev. Corp. v. Weiss, 203 A.D.2d at 574, 612 N.Y.S.2d 946;CBA Indus. v. Circulation Mgt., 179 A.D.2d at 616, 578 N.Y.S.2d 234).
"The scope of [an] arbitrator's authority must be determined from the language of the agreement, using accepted rules of contract law." CBA Indus., Inc. v. Circulation Mgmt., Inc. , 179 A.D.2d 615, 578 N.Y.S.2d 234, 237 (2d Dep't 1992).
While we think Mastrobuono dispenses of PSI's argument, even if New York law applies, New York law only empowers arbitrators to award attorneys' fees if the parties expressly agree that attorneys' fees are recoverable in the arbitration agreement. CBA Industries, Inc. v. Circulation Mgmt., Inc., 179 A.D.2d 615, 616, 578 N.Y.S.2d 234, 235 (N.Y.App.Div. 199 2). Accordingly, under either body of law, arbitrators lack the power to award attorneys' fees unless the parties agree to submit the issue for determination.
The grounds for vacating or modifying an arbitration award in New York are nearly identical to the grounds delineated in HRS § 658-9 and HRS § 658-10. In CBA Indus., Inc. v. Circulation Mgmt., Inc., 179 A.D.2d 615 (N.Y.App.Div.2d Dep't 1992), the appellate division held that "attorney's fees are specifically excluded unless they are expressly provided for in the arbitration agreement." Id. at 616 (internal citations omitted).
Ordered that the order and judgment is affirmed, with costs. In a voluntary arbitration attorneys' fees may not be recovered unless they are expressly provided for in the arbitration agreement or by statute (see, Matter of MKC Dev. Corp. v. Weiss, 203 A.D.2d 573; CBA Indus. v. Circulation Mgt., 179 A.D.2d 615, 616; Grossman v. Laurence Handprints-N.J., 90 A.D.2d 95, 101; see also, Hooper Assocs. v. AGS Computers, 74 N.Y.2d 487, 490). Accordingly, because the arbitration agreement in the instant case failed to provide for attorneys' fees, the court properly refused to permit the defendants to offset their pastdue rent against attorneys' fees incurred in the present litigation.
New York law also prohibits the recovery of attorney's tees in arbitration proceedings absent an express provision in the arbitration agreement. CBA Indus. v. Circulation Management, Inc., 179 A.D.2d 615, 578 N.Y.S.2d 234 (1992). Thus, we find the panel's award of attorney's fees constitutes resolution of an issue outside the scope of the arbitration agreement.
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).
Where the agreement of the parties failed to provide for attorneys' fees arising from arbitration but such fees were awarded in arbitration, the arbitrator exceeded the scope of his or her powers and modification of the Arbitration Award is proper (Matter of MKCDevelopment Corp. v Weiss; CBA Industries, Inc. v Circulation Management, Inc., 179 AD2d 615, 616 [2d Dept. 1992]). In such a case, the arbitrator has made an award upon a matter not submitted to him (CPLR 7511(c)(2)).
New York law does not provide for the arbitral award of punitive damages under any circumstances, Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 356, 386 N.Y.S.2d 831, 832 (1976), and New York law does not provide for the arbitral award of attorneys' fees unless specifically provided for in the parties' agreement. MKC Development Corp. v. Weiss, 612 N.Y.S.2d 946, 946 (App.Div. 1994); CBA Industries, Inc. v. Circulation Management, Inc., 578 N.Y.S.2d 234, 235 (App.Div. 1992). While New York substantive law is relatively clear with respect to arbitral awards of punitive damages, the United States Supreme Court ruled, in Mastrobuono v. Shearson Lehman Hutton, 514 U.S. ___, 115 S.Ct 1212, 131 L.Ed.2d 76 (1995), that the presence of a New York choice of law provision in a brokerage's customer agreement form does not automatically preclude an arbitral award of punitive damages.