Opinion
16812-, 16812A Index No. 653544/21 Case Nos. 2022-00753, 2022-01441
12-06-2022
In the Matter of TENDER TOUCH HEALTH CARE SERVICES INC. et al., Petitioners–Respondents, v. TNUZEG LLC, et al., Respondents–Appellants.
Borstein Turkel, P.C., New York (Avram S. Turkel of counsel), for appellants. Blank Rome LLP, New York (William J. Dorsey of counsel), for respondents.
Borstein Turkel, P.C., New York (Avram S. Turkel of counsel), for appellants.
Blank Rome LLP, New York (William J. Dorsey of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Gesmer, Kennedy, Shulman, JJ.
Judgment, Supreme Court, New York County (Joel M. Cohen, J.), entered March 30, 2022, confirming an arbitration award in favor of petitioners and against respondents Tnuzeg LLC and 300 North Broadway Healthcare LLC d/b/a New Vista Nursing and Rehab Center in the amount of $710,000 plus interest, and severing the proceeding and continuing it against respondent Vistacare, LLC, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about December 3, 2021, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Respondents failed to establish by clear and convincing evidence any ground for vacating the arbitration award ( CPLR 7511[b] ; see Intrepid Invs., LLC v. Selling Source, LLC, 159 A.D.3d 508, 509, 73 N.Y.S.3d 531 [1st Dept. 2018], lv dismissed and denied 32 N.Y.3d 1079, 89 N.Y.S.3d 109, 113 N.E.3d 943 [2018] ). Respondents did not establish that the arbitration panel's decision was irrational or exceeded a specifically enumerated limitation on its powers (see Matter of Geo–Group Communications, Inc. v. Jaina Sys. Network, Inc., 144 A.D.3d 598, 599, 42 N.Y.S.3d 118 [1st Dept. 2016] ), or that the panel was biased (see Matter of Infosafe Sys. [International Dev. Partners], 228 A.D.2d 272, 272–273, 643 N.Y.S.2d 585 [1st Dept. 1996] ). It is within the arbitrator's broad discretion to grant or deny adjournments (see Storey v. Searle Blatt Ltd., 685 F. Supp. 80, 82 [S.D.N.Y.1988] ). Respondents did not meet their burden of demonstrating that the purported denial of their nonspecific request for adjournments "forclose[ed] the presentation of material and pertinent evidence to [their] prejudice" ( Matter of Henneberry v. ING Capital Advisors, LLC, 37 A.D.3d 353, 354, 831 N.Y.S.2d 378 [1st Dept. 2007] [internal quotation marks omitted]). The adjournment request was made at most one week before the testimony was scheduled, and in any event, the arbitration panel concluded that evidence of any alleged billing irregularities was immaterial to the breach of contract claim.
Under the alleged circumstances surrounding Tnuzeg's acquisition of Vistacare, it was not error for the court to sever and continue this proceeding against Vistacare. There are sufficient contacts between respondents Tnuzeg, 300 Broadway, and Vistacare to warrant a finding that the forum selection clause in the arbitration agreement should be enforced against Vistacare (see Highland Crusader Offshore Partners, L.P. v. Targeted Delivery Tech. Holdings, Ltd., 184 A.D.3d 116, 121–122, 124 N.Y.S.3d 346 [1st Dept. 2020] ; see also Fitzgerald v. Fahnestock & Co., 286 A.D.2d 573, 575, 730 N.Y.S.2d 70 [1st Dept. 2001] ). Furthermore, jurisdiction is warranted here even though Vistacare is a New Jersey entity (see e.g. Matter of Gronich & Co., Inc. v. Simon Prop. Group, Inc., 180 A.D.3d 541, 542, 119 N.Y.S.3d 456 [1st Dept. 2020], lv denied 36 N.Y.3d 902, 2020 WL 7393235 [2020] ).
We have considered respondents’ remaining arguments and find them unavailing.