Opinion
8-, 9 Index No. 651172/22, 651170/22 Case No. 2022–03741, 2022-03740
04-11-2023
In the Matter of VORNADO 330 WEST 34TH STREET, L.L.C., Petitioner-Appellant, v. 330 WEST 34TH SPE LLC., Respondent-Respondent. In the Matter of 330 West 34th SPE LLC, Petitioner-Respondent, v. Vornado 330 West 34th Street L.L.C., Respondent-Appellant.
King & Spalding LLP, New York (Randy M. Mastro of counsel), for appellant. Schulte Roth & Zabel LLP, New York (Robert J. Ward of counsel), for respondent.
King & Spalding LLP, New York (Randy M. Mastro of counsel), for appellant.
Schulte Roth & Zabel LLP, New York (Robert J. Ward of counsel), for respondent.
Webber, J.P., Oing, Singh, Gonza´lez, Mendez, JJ.
Orders, Supreme Court, New York County (Jennifer G. Schecter, J.), entered July 28, 2022, which, to the extent appealed from as limited by the briefs, granted 330 West 34th SPE LLC's (landlord) petition to confirm the arbitration award dated January 18, 2022, and denied Vornado 330 West 34th Street L.L.C.’s (tenant) petition to vacate the award and refer the matter to a different neutral arbitrator, unanimously affirmed, with costs.
The neutral arbitrator in this proceeding was simultaneously serving as a party arbitrator in an unrelated landlord-tenant arbitration proceeding, wherein the landlord's expert in this proceeding was the neutral arbitrator in the other arbitration proceeding. Moreover, tenant's counsel in this proceeding was retained as landlord's counsel in the other proceeding. Although the tenant in this proceeding was allegedly unaware of the aforementioned potential conflicts of the neutral arbitrator in this proceeding until after the arbitration award was issued, tenant's counsel in this proceeding possessed that knowledge pre-award.
The court correctly confirmed the arbitration award. Tenant's counsel knew of the arbitrator's dealings in the unrelated landlord-tenant arbitration proceeding, and, as tenant's agent (see e.g. Wilmington Trust v. MC–Five Mile Commercial Mtge. Fin. LLC, 171 A.D.3d 591, 591, 99 N.Y.S.3d 11 [1st Dept. 2019] ; Banditree, Inc. v. Calpo, Inc., 146 A.D.2d 74, 76, 539 N.Y.S.2d 15 [1st Dept. 1989] ), counsel's knowledge of the arbitrator's apparent conflict can be imputed to tenant (see Savik, Murray & Aurora Constr. Mgt. Co., LLC v. ITT Hartford Ins. Group, 86 A.D.3d 490, 494, 927 N.Y.S.2d 634 [1st Dept. 2011], appeal dismissed 17 N.Y.3d 901, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2011], citing Kirschner v. KPMG LLP, 15 N.Y.3d 446, 465, 912 N.Y.S.2d 508, 938 N.E.2d 941 [2010] ; see also Title Guar. & Trust Co. v. Pam, 192 A.D. 268, 344–345, 182 N.Y.S. 824 [1st Dept. 1920], affd 232 N.Y. 441, 134 N.E. 525 [1922] ). The information that tenant's counsel had regarding the arbitrator's apparent conflicts was within the scope of counsel's agency to impart to tenant, and counsel could have advised tenant as to the same. Based on the foregoing, tenant waived its right to challenge the award on the grounds of arbitrator bias (see Matter of J.P. Stevens & Co., Inc. [Rytex Corp.], 34 N.Y.2d 123, 129, 356 N.Y.S.2d 278, 312 N.E.2d 466 [1974] ).