In re the Arbitration between Excelsior 57th Corp. & Kern

Appellate Division of the Supreme Court of New York

In re the Arbitration between Excelsior 57th Corp. & Kern

283 A.D.2d 209, 724 N.Y.S.2d 302, 2001 N.Y. App. Div. LEXIS 4828

Appellate Division of the Supreme Court of the State of New York·Decided May 8, 2001·Published·Cited by 1 cases

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered January 8, 2001, vacating so much of an arbitration award as awarded pre-award interest, unanimously affirmed, without costs.

The arbitrators exceeded their authority in awarding preaward interest on the back rent they found due, since the parties’ narrow arbitration clause provided for arbitration of only specifically mentioned issues of fact, the mentioned issue underlying the instant arbitration being the value of the land for the purpose of fixing the rent, and the parties did not otherwise agree to submit the issue of interest to the arbitrators (see, Matter of Trump [Refco Props.], 194 AD2d 70, 74, lv [210] denied 83 NY2d 754). Nor should such an award of interest be made as a matter of judicial discretion under CPLR 5001, where the arbitrators’ valuation was closer to respondent lessee’s than to appellants lessors’ by a very considerable amount, and where much unnecessary litigation and delay can be attributed to appellants (see, Matter of Kern [303 E. 57th St. Corp.], 204 AD2d 152, lv denied 84 NY2d 810; Matter of Excelsior 57th Corp. [Kern], 218 AD2d 528). Concur — Rosenberger, J. P., Nardelli, Tom, Andrias and Ellerin, JJ.

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—Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered January 8, 2001, vacating so much of an arbitration award as awarded pre-award interest, unanimously affirmed, without costs.

The arbitrators exceeded their authority in awarding preaward interest on the back rent they found due, since the parties’ narrow arbitration clause provided for arbitration of only specifically mentioned issues of fact, the mentioned issue underlying the instant arbitration being the value of the land for the purpose of fixing the rent, and the parties did not otherwise agree to submit the issue of interest to the arbitrators (see, Matter of Trump [Refco Props.], 194 AD2d 70, 74, lv [210] denied 83 NY2d 754). Nor should such an award of interest be made as a matter of judicial discretion under CPLR 5001, where the arbitrators’ valuation was closer to respondent lessee’s than to appellants lessors’ by a very considerable amount, and where much unnecessary litigation and delay can be attributed to appellants (see, Matter of Kern [303 E. 57th St. Corp.], 204 AD2d 152, lv denied 84 NY2d 810; Matter of Excelsior 57th Corp. [Kern], 218 AD2d 528). Concur — Rosenberger, J. P., Nardelli, Tom, Andrias and Ellerin, JJ.

In re the Arbitration between Excelsior 57th Corp. & Kern, 283 A.D.2d 209, 724 N.Y.S.2d 302, 2001 N.Y. App. Div. LEXIS 4828 (N.Y. Ct. App. 2001).

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Opinion

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