Appellate Division of the Supreme Court of New York, Second DepartmentSep 30, 2008
54 A.D.3d 1043 (N.Y. App. Div. 2008)
54 A.D.3d 1043863 N.Y.S.2d 9192008 N.Y. Slip Op. 7249

No. 2007-08210.

September 30, 2008.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2006, which awarded Novitt Sahr two thirds of certain disputed attorney's fees collected by the petitioner, the petitioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Agate, J.), entered August 30, 2007, as, upon a decision of the same court dated May 8, 2007, denied the petition and granted that branch of the cross petition of Novitt Sahr which was to confirm the arbitration award.

Godosky Gentile, P.C., New York, N.Y. (Brian J. Isaac and Jillian Rosen of counsel), for appellant.

Goldstein Greenlaw LLP (Abbey F. Goldstein and Mauro Goldberg Lilling LLP, Great Neck, N.Y. [Matthew W. Naparty], of counsel), for respondent.

Before: Fisher, J.P., Dillon, McCarthy and Belen, JJ.

Ordered that on the Court's own motion, the notice of appeal from the decision is deemed a premature notice of appeal from the judgment ( see CPLR 5520 [c]); and it is further,

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondent. An arbitration award may not be vacated unless it is irrational, violates a strong public policy, or clearly exceeds a limitation imposed on the arbitrator as enumerated in CPLR 7511 (b) ( see Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37; Matter of County of Nassau v Civil Serv. Empls. Assn., Inc., 19 AD3d 414, 415). An arbitrator exceeds his or her power under CPLR 7511 (b) (1) (iii) if the award "g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties" ( Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383; see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582; Matter of County of Nassau v Civil Serv. Empls. Assn., Inc., 19 AD3d at 415). Contrary to the appellant's contention, the arbitrator's determination was within her power, did not violate a strong public policy, and was not irrational. Accordingly, the award was properly confirmed.