Opinion
January 12, 1987
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the judgment is affirmed, with costs.
The appellants' contention that the petitioners lacked standing to seek confirmation of the arbitrators' award is without merit. The record reveals that while the petitioners did not exercise their right to actively participate in the arbitration, they were served with a demand for arbitration, they submitted a document in support of one of the parties during that proceeding, and they were billed for causing an adjournment of the arbitration hearings. Moreover, the arbitrators' award was binding upon the petitioners and they could have sought to vacate or modify it had they been so inclined (see, CPLR 7511). Hence, we conclude that under the unique circumstances of this case, they had sufficient standing to commence a proceeding to confirm the award. Furthermore, we note that the fixing of venue for the confirmation proceeding in Nassau County was not improper (see, Matter of D.M.C. Constr. Corp. v. Nash Steel Corp., 70 A.D.2d 635, appeal dismissed 49 N.Y.2d 1040; Matter of Probst [Midwest Mut. Ins. Co.], 39 A.D.2d 914, affd 32 N.Y.2d 634).
The appellants' contention that Special Term improperly rewrote the partnership agreements of the parties is similarly unavailing. The arbitration clause contained in each partnership agreement recites that the arbitrators' award will be "final and binding upon the parties hereto" and that "judgment may be entered on any award or decision rendered by the arbitrators". We agree with Special Term's determination that the settlement which the appellants entered into constituted a modification of the aforementioned arbitration clause insofar as said settlement purported to nullify the arbitrators' award. Therefore, the agreement to so modify the arbitration clause required the approval of all of the partners, including the petitioners. Additionally, the settlement contravenes the arbitration clause insofar as it attempts to preclude entry of judgment upon the arbitrators' award; hence, the consent of all the partners as required (see, Partnership Law § 40).
Finally, the appellants have failed to establish sufficient factual support for their equitable estoppel defense (see generally, Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, rearg denied 57 N.Y.2d 674; Holm v. C.M.P. Sheet Metal, 89 A.D.2d 229); hence, we find their argument in that respect to be without merit. Mollen, P.J., Bracken, Brown and Spatt, JJ., concur.