In re the Arbitration between Sherman Fitzpatrick & Co. & David Lerner Associates, Inc.

Appellate Division of the Supreme Court of New York

In re the Arbitration between Sherman Fitzpatrick & Co. & David Lerner Associates, Inc.

181 A.D.2d 581

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 24, 1992

StatusPublished

Cited by1 cases

This text of 181 A.D.2d 581 (In re the Arbitration between Sherman Fitzpatrick & Co. & David Lerner Associates, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Arbitration between Sherman Fitzpatrick & Co. & David Lerner Associates, Inc., 181 A.D.2d 581 (N.Y. Ct. App. 1992).

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Opinion

— Order, Supreme Court, New York County (Burton S. Sherman, J.), entered March 11, 1991, which denied petitioner’s application to vacate, in part, an arbitration award, unanimously affirmed, without costs.

Petitioner unwittingly negotiated bonds stolen from respondent by one of its employees. In the arbitration demand by petitioner for reimbursement of its losses, the arbitrator denied petitioner’s claims, and directed that petitioner deliver to respondent all of the bonds for which respondent had made restitution to the owners. Petitioner now asserts that the arbitrator was without authority to order the return of the bonds to respondent, as respondent had not asserted a formal counterclaim therefor, and as the aggregate value of the bonds was such that a panel of three arbitrators was required to rule on this "counterclaim.”

The award was properly confirmed, as petitioner waived its present claims that the arbitrator had exceeded his authority, by failing to voice any objection before the arbitration on the grounds it now advances (CPLR 7506 [f]). Moreover, the issue was raised in respondent’s answer, and petitioner has failed to demonstrate either prejudice or surprise. Concur — Milonas, J. P., Rosenberger, Kupferman, Ross and Smith, JJ.

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— Order, Supreme Court, New York County (Burton S. Sherman, J.), entered March 11, 1991, which denied petitioner’s application to vacate, in part, an arbitration award, unanimously affirmed, without costs.

Petitioner unwittingly negotiated bonds stolen from respondent by one of its employees. In the arbitration demand by petitioner for reimbursement of its losses, the arbitrator denied petitioner’s claims, and directed that petitioner deliver to respondent all of the bonds for which respondent had made restitution to the owners. Petitioner now asserts that the arbitrator was without authority to order the return of the bonds to respondent, as respondent had not asserted a formal counterclaim therefor, and as the aggregate value of the bonds was such that a panel of three arbitrators was required to rule on this "counterclaim.”

The award was properly confirmed, as petitioner waived its present claims that the arbitrator had exceeded his authority, by failing to voice any objection before the arbitration on the grounds it now advances (CPLR 7506 [f]). Moreover, the issue was raised in respondent’s answer, and petitioner has failed to demonstrate either prejudice or surprise. Concur — Milonas, J. P., Rosenberger, Kupferman, Ross and Smith, JJ.

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181 A.D.2d 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-sherman-fitzpatrick-co-david-lerner-nyappdiv-1992.

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