Matter of 1552 Broadway Retail Owner LLC v. McDonald's Corp.

2017 NY Slip Op 3874, 150 A.D.3d 485, 51 N.Y.S.3d 885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 2017
• Docket: 651884/14 3994 3993
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 8, 2017, inter alia, confirming an arbitration award dated February 23, 2016, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 10, 2017, which decided the parties’ respective motions to vacate and confirm the award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Assuming that respondent engaged in misconduct in advancing certain arguments before the arbitrators, petitioner failed to show by clear and convincing evidence that it was prejudiced by this misconduct (see CPLR 7511 [b] [1] [i]; Matter of Greenky v Aytes, 138 AD3d 460 [1st Dept 2016]; Scollar v Cece, 28 AD3d 317 [1st Dept 2006]). Neither the award, which determined that the fair market value of the demised premises fell between the values urged by the parties, nor the arbitrators’ brief explanatory statements establish unequivocally that the arbitrators accepted respondent’s arguments (see generally Solomon v State of New York, 146 AD2d 439 [1st Dept 1989]).

Concur—Friedman, J.P., Moskowitz, Manzanet-Daniels, Kapnick and Webber, JJ.