Opinion
0114972/4972.
April 5, 2005.
Mot. Seq. No. 003.
Petitioner Solow Building Company, LLC ("Solow"), moves for an order granting it leave to renew its motion to vacate an arbitration award dated October 29, 2002, based on a purported change in the law (CPLR 2221 [c]), and thereupon vacating the prior order and the judgment (CPLR 5015).
The underlying order confirming the arbitration award, rendered on April 22, 2003, was affirmed by the First Department in a decision dated April 29, 2004; the Court of Appeals thereafter denied leave to appeal, and the Supreme Court denied a petition for certiorari while this motion was pending ( Matter of Solow Bldg. Co, v. Morgan Guar, Trust, 6 A.D.3d 356 [1st Dept.], lv. denied, 3 N.Y.3d 605, cert. denied 125 S.Ct. 1310).
CPLR 2221 does not provide a time limit for a motion to renew based on a change in the law, but the motion must be made before judgment is final ( Eagle Ins. Co. v. Persaud, 1 A.D.3d 356 [2nd Dept. 2003]; Glicksman v. Board of Education/Central School Bd. of Comsewogue Union Free School Dist., 278 A.D.2d 364 [2nd Dept. 2000]). Here, the direct appeal process had been completed, but the petition for certiorari was pending when the motion was made.
Assuming the motion could be considered timely, Solow has not identified any new law or any change in controlling law that would justify renewal. It contends that the First Department's decision in Wien Malkin, LLP v. Helmsley-Spear, Inc., 12 A.D.3d 65 (2004), on remand from the United Slates Supreme Court, 540 U.S. 801, 801 (2003), constitutes a change in the law because it held that the Federal Arbitration Act, including the manifest disregard standard of review, applied broadly to arbitrations that "affect interstate commerce." However, the applicable change occurred in 2003, when the Supreme Court first decided Citizens Bank v. Alafabco, 539 U.S. 52 (June 2, 2003), and then granted certiorari in Wien Malkin, LLP v. Helmsley-Spear, Inc., 540 U.S. 801 (October 6, 2003), vacated the decision and remanded for reconsideration in light of that decision. Those cases were applicable to the direct appeal in the instant matter ( Americorp Securities, Inc. v. Sager, 239 A.D.2d 115, 116 [1st Dept.], lv. denied 90 N.Y.2d 808, "cases on direct appeal will be decided in accordance with the law as it exists at the time the appeal is decided"). The subsequent decision of the First Department on remand in Wien Malkin, LLP v. Helmsley-Spear, Inc., is not new law, since it "merely applies previously established principles in a new factual setting or settles a question in a manner that was clearly foreshadowed" ( id., citations omitted).
Moreover, Solow argued both in this court and on direct appeal (motion, exhibit 5, pp. 2-4), that the award should be vacated under the manifest disregard standard, and the argument was addressed on the merits and rejected. In particular, the First Department noted that the arbitrators may have determined that changed circumstances necessitated a different method of calculation than that directed in a prior arbitration award, which Solow had been enjoined to obey. So long as a "barely colorable justification" for an arbitral award may be discerned, the court may not vacate under the manifest disregard standard ( Matter of Roffler v. Spear, Leeds Kellogg, 13 A.D.3d 308 [1st Dept. 2004]). Accordingly, the award has already been reviewed and affirmed under the standard which Solow argues applies, and no further review in the guise of renewal is available.
In contrast, in the first appellate decision in Wien Malkin, LLP v. Helmsley-Spear, Inc., 300 A.D.2d 32 (2002), the First Department stated that the legal basis for the arbitration award was "questionable," it could not be reviewed under the manifest disregard standard, and, "[g]iven our very limited scope of review," must be affirmed. No such doubts were expressed in connection with the instant matter.
As set forth in this court's prior decision, following the first arbitration, the court granted an injunction precluding Solow from computing the "escalated rents on any basis other than that determined by the arbitrator," unless the "formula may be modified by agreement of the parties or necessitated by changes in the collective bargaining agreement by which Solow is bound" ( Morgan Guaranty Trust Co. of blew York v. Solow, 114 A.D.2d 818, 822-23 [1st Dept. 1985], aff'd, 68 N.Y.2d 779 [1986], "Morgan I"). This injunctive relief was found to be warranted by Solow's conduct, following arbitration, of continuing to issue wage escalation bills utilizing a method other than the one found by the arbitrators to be the correct one ( id., at 822). The injunction did not preclude respondent Morgan Guaranty Trust Company from seeking a change in the method of calculation based on changed circumstances or for any other reason.
Solow's attempt to renew the court's pre-arbitration determination that the dispute could be submitted to a new panel following vacatur of an award rendered by a previous panel, which decision also was affirmed on appeal, is wholly without merit ( In re Solow Building Co., LLC v. Morgan Guaranty Trust Co. of N.Y., 294 A.D.2d 224 [1st Dept], lv. denied, 98 N.Y.2d 611).
The motion for leave to renew is denied.
This decision constitutes the order of the court.