In re the Arbitration between Ververs & Schueller Co. & Emory Machine & Tool Co.

190 A.D.2d 1079

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Order unanimously reversed on the law without costs, petition granted and award confirmed. Memorandum: After an arbitration proceeding, petitioner was awarded $19,804.30 plus interest. Petitioner petitioned for confirmation of that award, and respondents cross-petitioned to modify the award. Supreme Court concluded that there was an error in the award and referred the matter to the arbitrator for further consideration. Because respondents failed to establish a basis for modification of the award, Supreme Court should have confirmed the award (see, CPLR 7510).

Respondents sought modification on two grounds, neither of which applies here. Respondents argued that the award was the result of a miscalculation by the arbitrator in adding the same figures twice because they were contained in two exhibits (see, CPLR 7511 [c] [1]). Respondents, however, were challenging the figures the arbitrator chose to use in the exercise of his judgment, not his computation. Thus, respondents were not entitled to modification pursuant to CPLR 7511 (c) (1) (see, Matter of White Fashions [Susquehanna Mills], 295 NY 450, 456; Matter of City of Troy [Village of Menands], 48 AD2d 733, 734). With respect to respondents’ application for modification pursuant to CPLR 7511 (c) (3), their challenge to the amount of the award was an attack on its substance rather than on its form and, thus, a modification is not authorized by CPLR 7511 (c) (3) (see, Seafarer Fiberglass Yachts v Chelius, 112 AD2d 412, 414-415). (Appeal from Order of Supreme Court, Monroe County, Siracuse, J. — Arbitration.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.