Kushlin v. Bialer

32 A.D.2d 217, 301 N.Y.S.2d 181, 1969 N.Y. App. Div. LEXIS 3598

Opinions

McNally, J.

Special Term stayed prosecution of this action pending arbitration as provided in the agreement of the parties dated February 1, 1955.

The agreement provides (par. 20) “ these arbitrators shall be selected one by each of the partners. ’ ’ Plaintiff-appellant argues the other two parties to the agreement, the individual defendants, are aligned against him, therefore the contract provision for selection of arbitrators is unfair and should not be enforced.

Appellant does not rely on ambiguity. There is, therefore, no basis for construction. It is well settled that a court may not, under the guise of interpretation, remake a contract to implement an unexpressed intention. (Rodolitz v. Neptune Paper Prods., 22 N Y 2d 383, 386.) It was otherwise in Matter of Di Stasio (Avallone) (27 AD 2d 726, revd. on dissenting opn. 21 N Y 2d 665). There the provision for selection of arbitrators was “ each party shall be entitled to appoint an arbitrator.” In the circumstances present in Di Stasio, it was held that the phrase ‘1 each party ’ ’ had reference to the parties to the dispute, not the parties to the agreement. On the phraseology of that contract it was held the opposing parties to the dispute should be aligned and each side shall have the right to select one arbitrator. The difficulty here is that the contract unambiguously provides for the right of selection of an arbitrator by “each of the partners”. No rational basis is advanced for interpretation — there is no ambiguity.

The parties to the agreement were free to adopt their own method of selection of arbitrators, and the court is required to enforce the agreement of the parties. (Matter of Astoria Med. Group [Health Ins. Plan of Greater N. Y.], 11 N Y 2d 128, 133.) Partisanship in the selection of arbitrators does not preclude enforcement of the provision for arbitration (p. 136). Even in the case of a single arbitrator named in the provision for arbitration, the nominee of one of the parties to the dispute, arbitration as agreed will be enforced. (Matter of Amtorg Trading Corp. v. Camden Fibre Mills, 304 N. Y. 519.) If there be misconduct on the part of the arbitrators to be selected, then there may be recourse under CPLR 7511. (Matter of Lipschutz [Gutwirth], 304 N. Y. 58, 65; Matter of Astoria Med. Group, supra, p. 137.)

The order should be affirmed, with costs.