Adelstein v. Thomas J. Manzo, Inc.

61 A.D.2d 933, 402 N.Y.S.2d 1009, 1978 N.Y. App. Div. LEXIS 10525

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered on September 9, 1977, which granted petitioner’s application to confirm an arbitrator’s award to the extent of modifying that award to provide that the weekly pay figure of $239 should be used to calculate back pay instead of the $259 figure found by the arbitrator and which denied respondent’s cross motion to vacate the award, unanimously reversed, on the law, and vacated, without costs or disbursements, and the petition to confirm dismissed, the cross motion to vacate granted and the matter remanded to the arbitrator to make a final award of back pay. After determining the issues submitted, the arbitrator retained jurisdiction solely to fix the amount of back pay due the employee, after giving credit to the employer for earnings from other employment and unemployment insurance payments, in the event the parties could not agree. Though there may well be no real issue on this subject, it is manifest that the parties are not in agreement and the matter therefore must go back to the arbitrator to determine the amount of back pay due. Consequently, and by its own terms, whereby the arbitrator retained jurisdiction to determine such dispute, the award is not a final determination, but only interlocutory. (CPLR 7511, subd [b], par 1, cl [iii].) In the absence of a final award, there is no authority for judicial intervention and the petition for confirmation must be dismissed. (Cf. Mobil Oil Indonesia v Asamera Oil, 43 NY2d 276.) Concur—Murphy, P. J., Lupiano, Lane, Markewich and Sullivan, JJ.