Matter of Bear, Stearns & Co. Inc. v International Capital & Mgt. Co. LLC

Matter of Matter of Bear, Stearns & Co. Inc. v International Capital & Mgt. Co. LLC 2012 NY Slip Op 04822 Decided on June 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Freedman, JJ. 7566-
650125/11 7567

[*1]In re Bear, Stearns & Co. Inc., now known as J.P. Morgan Securities, LLC, et al., Petitioners-Respondents,

v

International Capital & Management Company LLC, Respondent-Appellant.




Tannenbaum Helpern Syracuse & Hirschtritt LLP, New York
(Paul D. Sarkozi of counsel), for appellant.
Freshfields Bruckhaus Deringer US LLP, New York (Gabrielle
Gould of counsel), for respondents.

Amended and superseding judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered October 25, 2011, awarding petitioners the total amount of $339,698.94, unanimously affirmed, without costs. Appeal from order and judgment (one paper), same court and Justice, entered June 20, 2011, unanimously dismissed, without costs, as moot.

The arbitration panel did not exceed its powers or violate a strong and well defined public policy by awarding attorneys' fees (see Matter of Goldberg v Thelen Reid Brown Raysman & Steiner LLP, 52 AD3d 392 [2008], lv denied 11 NY3d 749 [2008]). The record reflects that the parties consented to the arbitration panel's consideration of an award of attorneys' fees in their pleadings and in agreeing to the application of rules that permitted such an award (see Matter of Warner Bros. Records [PPX Enters.], 7 AD3d 330, 330-331 [2004]). Respondent reiterated its demand for attorneys' fees during the hearing, thereby acknowledging the power of the panel to award fees, in contrast to the actions of the litigants in Matter of Matza v Oshman, Helfenstein & Matza (33 AD3d 493 [2006]) and Matter of Stewart Tabori & Chang v [Stewart] (282 AD2d 385 [2001], lv denied 96 NY2d 718 [2001]). Moreover, respondent did not attempt to withdraw its consent until its closing statement at the conclusion of the proceedings, which spanned more [*2]than two years, when it was apparent that the arbitration panel was likely to award petitioner attorneys' fees incurred in connection with the claim that respondent withdrew.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2012

CLERK