In re the Arbitration between Leblon Consultants, Ltd. & Jackson China, Inc.

92 A.D.2d 499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1983
• Status: Published

Opinions

— Judgment (denominated an order), Supreme Court, New York County (Ryp, J.), entered May 20, 1982, which denied petitioner’s application to confirm an arbitrator’s award and granted the cross motion by respondent to vacate the award, and remanded the matter to the American Arbitration Association, affirmed, without costs or disbursements. We agree with the conclusion reached by Special Term that, under the circumstances of this case, the refusal of the arbitrator to grant respondent’s reasonable request for an adjournment constituted misconduct which justified vacatur of the award and remand of the matter to the American Arbitration Association (AAA) (International Components Corp. v Klaiber, 59 AD2d 853; Matter ofWoodco Mfg. Corp. [G.R. & R. Mfg.], 51 AD2d 631). The record reflects a history of prior adjournments and delay by both parties. Respondent had sought, first by telephone request to the AAA and, subsequently, by application to the arbitrator, to schedule the hearing during a week when Mr. Greystoke, a British citizen, would be in New York on business. Greystoke, at the time of the application, was in England. It is alleged that he was the only employee of respondent who had knowledge of the underlying dispute. His unavailability on the scheduled date of the hearing, according to respondent, necessitated the application since counsel considered Greystoke’s presence as indispensable in the contemplated cross-examination of petitioner’s key witness. Under the circumstances, we agree that the arbitrator abused his discretion in denying this reasonable request for an adjournment, which we find constituted misconduct sufficient to vacate the award under CPLR 7511 (subd [b], par 1). Although not raised directly on the appeal, since the disposition of Special Term determined the rights of the parties in this special proceeding, CPLR 411 required entry of a judgment, albeit interlocutory (Matter of Miller [Ives], 79 Mise 2d 184; Matter of 1825 Realty Co. v Gabel, 44 Mise 2d 168; Matter of Avalon East v Monaghan, 43 Mise 2d 401; 1 Weinstein-Korn-Miller, NY Civ Prac, par 411.01). The memorandum of Special Term so directed, requiring the parties to “[s]ettie judgment providing that the matter be remanded to the AÁA.” Any application which may be necessary, in the future, to confirm, vacate or modify any award rendered, of necessity, will concern subsequent events, will require a different petition and answer than that interposed herein and may raise issues wholly distinct from those litigated in this special proceeding. Concur — Kupferman, J. P., Carro, Fein and Kassal, JJ.