In re the Arbitration between Merrill Lynch, Pierce, Fenner & Smith, Inc. & A. Webster Dougherty & Co.

198 A.D.2d 181, 604 N.Y.S.2d 78

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Edith Miller, J.), entered October 2, 1992, which, insofar as appealed from, confirmed an arbitration award against respondent-appellant, unanimously affirmed, with costs.

The arbitrators’ denial of appellant’s request to produce millions of pages of unspecified documents, later reduced, cannot be characterized as misconduct in the sense of refusing to hear pertinent and material evidence. The fraud sought to be proven by such documents was determined by the arbitrators not to be pertinent and material, and therefore the documentation sought would not have undermined petitioners’ right to recover even if it did exist. Thus, the arbitrators’ ruling was at most an unreviewable error of law and does not constitute misconduct. In any event, the arbitrators’ ruling did not deprive appellant of the opportunity to make its case on the issue of fraud. Although other respondents did put in0 their case before the arbitrators, appellant offered no witnesses, produced no documentation and failed to subpoena those witnesses it now claims to have pertinent evidence.

We have considered appellant’s other arguments and find them to be without merit. Concur — Murphy, P. J., Sullivan, Rosenberger, Ross and Rubin, JJ.