Matter of MK Link Inv. Partnership v WSW Capital, Inc.

Matter of Matter of MK Link Inv. Partnership v WSW Capital, Inc. 2012 NY Slip Op 04939 Decided on June 19, 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 19, 2012
Sweeny, J.P., Catterson, Acosta, Freedman, Román, JJ.
7976 604274/04

[*1]In re MK Link Investment Partnership, Petitioner-Respondent, Levine Investments, L.P., Petitioner,

v

WSW Capital, Inc., et al., Respondents, CSAM Capital, Inc., etc., Respondent-Appellant.




Wilmer Cutler Pickering Hale and Dorr LLP, New York (Peter
J. MacDonald of counsel), for appellant.
Paduano & Weintraub LLP, New York (Anthony Paduano of
counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Harold G. Leventhal, Special Referee), entered December 1, 2010, which, to the extent appealed from, permitted a double recovery, unanimously reversed, on the law, with costs, and so much of the order and judgment as permits petitioner MK Link to retain its capital account at respondent CSAM in addition to receiving a new strip of securities, vacated.

The arbitral award, which was confirmed without modification in 2006, states that MK Link's 1996 Fund "limited partnership capital account position shall be effected for the full 13-year term of the . . . Fund, without calculation of any participation in the Master Fund" (emphasis added). The Special Referee's decision, which permitted petitioner MK Link to retain its capital account (i.e., its participation in the Master Fund) at respondent CSAM in addition to receiving a new strip of securities, impermissibly modified the arbitral award (see CPLR 7511[c]) and violated the rule against double recoveries (see e.g. Dabbah Sec. Corp. v Croesus Capital Corp., 297 AD2d 531, 534 [2002]). MK Link contends that the award of its capital [*2]account compensated it for the damages caused by CSAM's delay in complying with the arbitral award. However, the Special Referee specifically denied MK Link's requests for consequential damages and interest.

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

ENTERED: JUNE 19, 2012

DEPUTY CLERK