holding that a claim relating to performance under a contract and a counterclaim relating to the negotiation of the contract "do not arise out of the same transactions or occurrences"Summary of this case from Distribuidora De Discos Karen C. Por A. v. Universal Music Grp., Inc.
Argued October 18, 1976
Decided December 2, 1976
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CHARLES G. TIERNEY, J.
Charles G. Moerdler, Henry J. Silberberg and Vicki Z. Armet, New York City, for appellant.
Michael A. Cardozo and Mark Walfish, New York City, for respondent.
We hold that, for purposes of applying the Statute of Limitations, a landlord's counterclaim to the tenant's demands for recovery of overpayment of rent (where that counterclaim is based on the assertion that the lease between them should be reformed) does not arise "from the transactions, occurrences, or series of transactions or occurrences" upon which the tenant's claim for overpayment of rent depends. Accordingly in this instance, the landlord's attempted supplemental submission to arbitration of its claim for relief in the nature of reformation was properly stayed, on timely application of the tenant, as being barred by the six-year Statute of Limitations. We also hold that, were the landlord's counterclaim to be reached, an arbitrator would have power under a broad arbitration clause to grant appropriate relief including that similar to the remedy of reformation in equity. It was thus error below to grant the stay of arbitration on the alternative ground that the specific relief sought therein would not have been available.
In June, 1966 the parties entered into an agreement by which the tenant leased several floors of a commercial building from the landlord for a term of 50 years commencing February 28, 1968. The agreement provided a fixed rent, made subject in section 2.02 to annual adjustments equal to 17.73% of changes in real estate taxes and expenses incurred on the building over "Base Taxes" and an "Expense Base Factor" as those terms were defined. Also included was an arbitration clause by which the parties agreed that "if there be any dispute between Landlord and Tenant with respect to the provisions of this Section 2.02, the issue shall be expeditiously submitted to the American Arbitration Association for determination".
After the tenant had entered upon the premises it was advised on August 6, 1969 of a rent escalation due to an increase in taxes for the 1969-1970 tax year and on September 21, 1970 of an escalation resulting from an increase in operating expenses during the fiscal year ended November 30, 1969. The requested payments were made without objection as were increases for each of the subsequent years until with the payments due for expense increases for the year ended November 30, 1972 and for tax increases for the 1973-1974 tax year the tenant included a reservation of its right to disagree with the escalations imposed.
On February 15, 1974 the tenant served a demand for arbitration of claims that the landlord's calculation of the "Expense Base Factor" and the annual increments in expenses through 1972 had been improper and that the landlord had violated section 2.02 of the lease insofar as taxes on the property were concerned. Arbitration was postponed during settlement negotiations and after their collapse until it was judicially determined that the landlord was barred by lapse of time from making an application for a stay of arbitration. Shortly before the first arbitration hearing, scheduled for January 19, 1976, the landlord filed an amended answer in the arbitration proceedings in which it asserted a "Fifth Defense" by which it sought for the first time in effect to have the lease rewritten so as to raise the tenant's liability for increases in electricity expense from 17.73%, as specified in the agreement, to 24.98%, asserted to be the tenant's proportionate share of such expenses. The tenant then promptly instituted the present proceeding for a stay of arbitration of the alleged defense asserting that the reformation sought was beyond the power of the arbitrators and in any event, not having been sought until almost 10 years after the execution of the lease, was barred by the Statute of Limitations. Upholding both contentions, the Appellate Division reversed Special Term and granted the stay. ( 53 A.D.2d 595.)
The order should be affirmed. By virtue of CPLR 7503 (subd [b]) the tenant is entitled to a stay of arbitration of the landlord's claim for relief if "the claim sought to be arbitrated would have been barred by limitation of time had it been asserted in a court of the state" (CPLR 7502, subd [b]). The landlord's counterclaim falls precisely within this description. As we have recently observed, in determining an application to stay arbitration on the ground the claim is time-barred, "the period of limitation to be applied should, with exceptions not to be proliferated, depend upon the form of the remedy" (Matter of Paver Wildfoerster [Catholic High School Assn.], 38 N.Y.2d 669, 676). The particular form of remedy sought by what is denominated the fifth "defense" stated in respondent's answer is a rewriting of the terms of the lease agreement with a concurrent determination of liability on the part of the tenant for additional rent in consequence of such revision of the instrument. Were the landlord to seek such relief in a judicial proceeding, it would be barred by the six-year limitation provided by CPLR 213 (subd 1) for an action for which no other limitation is fixed by law. That statutory section is the successor to section 53 of the Civil Practice Act prescribing a 10-year period, which was applicable to actions for reformation (Hanover Fire Ins. Co. v Morse Dry Dock Repair Co., 270 N.Y. 86).
The landlord's reliance on the suggestion in Bartlett v Judd ( 21 N.Y. 200) that the Statute of Limitations does not apply to an equitable defense is unwarranted. What the landlord asserts in this present instance is not a defense — that is, a bar to the claim asserted by the tenant — but is in the nature of a counterclaim, i.e., a statement of circumstances which in and of themselves may form the basis of an adjudication of affirmative relief in favor of the landlord on its claim, irrespective of the tenant's success or failure on the latter's cause of action. The landlord's repeated insistence that it seeks relief on its request for reformation only in the event that the arbitrator considers the tenant's claim for refund of overpayment of rent serves simply to make the assertion of its demand for relief contingent; it does not vary the nature of the remedy pursued.
Nor is the landlord's reliance on CPLR 203 (subd [c]) well founded. That section excludes from the bar of limitations, but only to the extent of plaintiff's claim, counterclaims even if they would have been barred at the time of the commencement of the action, provided that the counterclaim be one that "arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends." Here, however, respondent's claim for reformation is not in the nature of recoupment, the equitable doctrine in which the statutory provision is grounded. It does not seek a recovery-back predicated on some act or fact growing out of the matter constituting the cause or ground of the action brought, but is instead a setoff — a separate and distinct claim in favor of the landlord. The tenant's demand for refund of rent overpayment is predicated on acts of the landlord related to, or by which it computed and assessed, escalations of rent after the term of the lease commenced in February, 1968; the landlord's demand for reformation is grounded on allegations as to the intention of the contracting parties prior to and at the time the lease was executed with respect to the proportionate share of electrical expense to be borne by the tenant. The tenant's claim relates to performance under the contract; the landlord's relates to the negotiation and articulation of the agreement made between the parties prior to its execution. While in a most general sense both might be said to be associated with the lease, in the language of CPLR 203 (subd [c]), the claims do not arise out of the same transactions or occurrences.
Since the landlord's counterclaim for relief in the nature of reformation of the 1966 contract, if asserted in a law action in 1974, would have been barred by the Statute of Limitations, the tenant has properly been granted a stay of arbitration under CPLR 7503 (subd [b]).
We find no merit in the landlord's contentions that the tenant by initiating arbitration authorizing that remedy and by participating therein for two years has waived any right to challenge respondent's demand that the arbitrator reform the lease. First, it may be observed that there has been no participation in arbitration of respondent's demand for reformation by petitioner, which moved promptly after receipt of the amended answer to stay arbitration of that claim. Neither may petitioner be said to have waived its right to challenge the arbitrability of the claim for reformation by virtue of the fact that it initiated the arbitration process. On timely application and absent participation in arbitration proceedings without challenge to the matters introduced, there is no basis for barring a party who has sought arbitration from thereafter seeking judicial determination as to arbitrability of matter set forth in an answer which would expand the scope of the arbitration (cf. Matter of James Talcott, Inc. [Lowenstein Sons], 33 N.Y.2d 924).
Finally, because the issue has been briefed and argued expansively by the parties in this action, was explicitly addressed by the court below, and is one on which lower courts have differed (cf. Swartz v Swartz, 49 A.D.2d 254; Matter of Agora Development Corp. [Low], 19 A.D.2d 126; Stewart-Scott Constr. Corp. v Schaefer Brewing Co., 41 A.D.2d 788; Matter of Glenwood Jewish Center [Marard Caterers], 39 A.D.2d 536), we take this occasion to express our disagreement with the position articulated by the Appellate Division that arbitrators have no power under a broad arbitration clause to grant what we would think of as the remedy of reformation. Arbitrators have power to fashion remedies appropriate to the resolution of the dispute between the parties before them. To the extent that relief in the nature of reformation might be deemed an appropriate remedy for the controversies existing between this tenant and this landlord, the award of such a remedy would fall within the authority of arbitrators acting under a broad arbitration clause. "It is customary and appropriate for arbitrators to pass upon claims for reformation for mutual mistake, often applying principles more liberal than judicial equity" (International Union of Operating Engrs. v Carl A. Morse, Inc., 529 F.2d 574, 580; American Home Assur. Co. v American Fid. Cas. Co., 356 F.2d 690; Elkouri and Elkouri, How Arbitration Works, p 346). The function of arbitrators is to "find a just solution" to the controversy between the parties (Lentine v Fundaro, 29 N.Y.2d 382, 385); to that end it will be for them to "fashion the remedy appropriate to the wrong" (Matter of Paver Wildfoerster [Catholic High School Assn.], 38 N.Y.2d 669, 677, supra). Moreover, the rules of the American Arbitration Association adopted by the parties now before the court expressly provide that "[t]he Arbitrator may grant any remedy or relif which he deems just and equitable and within the scope of the agreement of the parties".
In arbitration parties seek the resolution of differences which have arisen between them in concrete factual settings free from the requirements and expectations familiar to judicial proceedings with respect both to the formulation of pleadings and causes of action and to historical and current legal theories as to the availability of remedies. The awards of arbitrators are not subject to judicial review for errors of law or of fact. Nor should there be the control which would flow from the exercise of such power of review. Submissions are for determinations based on the ad hoc application of broad principles of justice and fairness in the particular instance. Reliance is not placed on continuity of tribunal personnel or operation. Predictability is not an objective and awards do not have, nor is it intended that they should have, the precedential value that we attach to judicial determinations. Thus analytical structure and synthesis take on a different function. In the present context, for instance, it would be unimportant whether an arbitrator were to formulate his resolution of the landlord's claim for increased additional rent in a conclusion that the initial intent of the parties was that the percentage figure in the lease be higher and accordingly that the lease should be rewritten to manifest that intent, or, on the other hand, in a determination that in all the circumstances justice dictated that the differences between the parties should be disposed as though the percentage figure had been higher. This is not to suggest that awards are not based on analysis, logic and experience. It is to say that the channels of legal procedure and thought understandably may often be found to be lacking, or at least not determinative.
We hold that in the absence of contrary public policy (cf. Garrity v Lyle Stuart, Inc., 40 N.Y.2d 354) or an express provision in the arbitration agreement otherwise limiting his authority, the arbitrator of the disputes between these parties would have the power to grant relief which in the courts would be called reformation by rewriting the provisions of the lease. Because, however, the claim of the landlord for which such relief is sought is barred by the Statute of Limitations, the order staying arbitration of that claim should be affirmed.
I too vote for affirmance; however, I cannot concur with the majority's suggestion that reformation is an arbitral issue.
With the exception of a contrary dictum contained in Matter of Agora Development Corp. (Low) ( 19 A.D.2d 126), and a Federal case relying upon the dictum (American Home Assur. Co. v American Fid. Cas. Co., 356 F.2d 690), the courts of this State have consistently held that unless the parties confer the authority upon him, an arbitrator lacks power to reform or change the contract itself (Stewart-Scott Constr. Co. v Schaefer Brewing Co., 41 A.D.2d 788; Matter of Glenwood Jewish Center [Marard Caterers], 39 A.D.2d 536; Matter of Vincent J. Smith, Inc. [Lauri Trucking Co.], 19 A.D.2d 763; Matter of Marlowe Mills [Sachs], NYLJ, Nov. 8, 1971, p 2, col 5; Escambia Chem. Corp. v Leonard, NYLJ, Aug. 1, 1966, p 8, col 3; but cf. Swartz v Swartz, 49 A.D.2d 254 ).
These decisions, involving arbitration clauses broader than those in the case before us, are based upon the settled rule "that a party may not be required to submit to arbitration matters which he has not agreed to arbitrate" (Matter of Macy Co. [National Sleep Prods.], 39 N.Y.2d 268, 270). Manifestly, it violates this fundamental principle to suggest, as the majority does, that SCM by agreeing to arbitrate one aspect of potential disputes that might arise between the parties, i.e., those arising out of the explicit escalation provisions, also agreed to confer upon the arbitrator authority to rewrite the contract. "It is not the function of an arbitrator * * * to decide in what respects the contract in question should be modified * * * Contract modifications are not traditionally matters for arbitration" (City Elec. v Local Union 77, Int. Brotherhood of Elec. Workers, 517 F.2d 616, 619, cert den 423 U.S. 894).
Moreover, reliance upon prior decisions of this court holding that arbitrators may "fashion the remedy appropriate to the wrong" (e.g., Matter of Paver Wildfoerster [Catholic High School Assn.], 38 N.Y.2d 669, 677) begs the question of whether the claim to be arbitrated is within the scope of the arbitration clause. Only if the claim is encompassed by the clause do the arbitrators have discretion to grant the relief they deem proper. Thus, rule 42 of the American Arbitration Association provides that the arbitrator may "grant any remedy or relief which he deems just and equitable and within the scope of the agreement". (Emphasis supplied; cf. Matter of De Laurentiis [Cinematograficade las Americas, S.A., 9 N.Y.2d 503, 510.)
"[G]iven the eminently desirable freedom from judicial overview of law and facts" prevailing in arbitration, the caution against making the proceedings a "trap for the unwary", recently expressed by this court in holding that arbitrators lack the power to award punitive damages (Garrity v Lyle Stuart, Inc., 40 N.Y.2d 354, 359), is equally applicable here. The power of reformation would likewise "mean that the scope of determination by arbitrators * * * would be both unpredictable and uncontrollable".
Accordingly, I concur in the result reached by the majority.
I concur in the reasoning of the majority to the extent that it holds that, were it to reach the landlord's counterclaim, an arbitrator would have the power under a broad arbitration clause to grant the landlord's claim for reformation. I dissent, however, because, I submit, the Statute of Limitations should not be applied to bar the landlord's "Fifth Defense" in arbitration.
With respect to counterclaims, the relevant portion of the statute provides: "if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed." (CPLR 203, subd [c].)
The above-quoted portion of the statute codifies the doctrine of equitable recoupment. The doctrine could be invoked under prior law, but the CPLR has expanded its application (see, generally, 35 N.Y. Jur, Limitations Laches, § 9, pp 487-488). Under prior law, a tort claim could not be interposed as a recoupment to a contract claim, even if both claims involved the same transaction (see Fish v Conley, 221 App. Div. 609; see, also, Garben v McKittrick, 225 App. Div. 772). This conceptualism has been eliminated so that a counterclaim of recoupment is permitted on any claim arising out of the same transaction (McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 203, p 119). Moreover, recoupment does not depend upon any distinctions between defense, counterclaim, setoff and recoupment (1 Weinstein-Korn-Miller, N Y Civ Prac, par 203.25, p 2-86).
The majority states that the landlord's claim is not in the nature of recoupment, that it does not seek a recovery predicated on the same act or fact growing out of the tenant's claim, but rather is (p 791) "a separate and distinct claim". In support of its position, the majority adds that the tenant's claim relates to (p 792) "performance under the contract", but the landlord's claim relates to (p 792) "negotiation and articulation * * * prior to its execution." From this, the majority concludes that the claims do not arise out of the same transactions or occurrences. It is precisely this type of conceptualism that CPLR 203 (subd [c]) was intended to eliminate.
The words "same transaction or occurrence" should be broadly construed (see 1 Weinstein-Korn-Miller, N Y Civ Prac, par 203.25, p 2-86). The majority's construction is too narrow. The tenant's claims relate to whether the landlord computed additional rent in accordance with the lease; the landlord's counterclaim relates to the question of what were the correct percentages to be used in computing such rent. Contrary to the view expressed by the majority, both claims arose from the same transaction — the negotiation of the terms of the lease. That the tenant claims overpayment resulting from the landlord's acts after execution of the lease does not alter the fact that both claims relate to what the parties intended in their negotiations. The landlord's claim is thus one for equitable recoupment and, if found valid by the arbitrators, should be allowed to the extent of the tenant's claim (cf. Title Guar. Trust Co. v Hicks, 283 App. Div. 723). Accordingly, the Statute of Limitations should not be held to bar the landlord's counterclaim in the arbitration proceeding.
Chief Judge BREITEL and Judges JASEN and WACHTLER concur with Judge JONES; Judge FUCHSBERG concurs in result in a separate opinion; Judge COOKE dissents and votes to reverse in another separate opinion in which Judge GABRIELLI concurs.
Order affirmed, with costs.