Caruso v Viridian Network, LLC

Caruso v Viridian Network, LLC 2013 NY Slip Op 08507 Decided on December 19, 2013 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 December 19, 2013
Friedman, J.P., Sweeny, DeGrasse, Richter, Feinman, JJ.
10524N 652686/12

[*1]Suzanne Caruso, Petitioner-Respondent,

v

Viridian Network, LLC, et al., Respondents-Appellants.




Morrison Cohen LLP, New York (Y. David Scharf of counsel),
for appellant.
Harter Secrest & Emery LLP, Buffalo (John G. Horn of
counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 14, 2013, which vacated an arbitration award in its entirety and remanded the matter to a new arbitrator, unanimously modified, on the law, to reinstate the award to the extent it imposed sanctions against petitioner's counsel for violation of the parties' stipulated confidentiality order, and remand to the same arbitrator, and otherwise affirmed, without costs.

The arbitrator exceeded the scope of his authority by excluding petitioner from certain portions of the arbitration proceedings, over her objection, in violation of rule 23 of the American Arbitration Association's Commercial Arbitration Rules (see 9 USC § 10[a][4]; Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 183 [1995]). Therefore, the arbitration award was properly vacated except to the extent it imposed sanctions against petitioner's counsel.

However, the court offered no valid justification for its decision to remand the matter for consideration by a new arbitrator. There was no evidence of bias, fraud or corruption by the arbitrator and thus the matter should be remanded to the same arbitrator (see Sawtelle v Waddell & Reed, 304 AD2d 103, 117 [1st Dept 2003] ["In view of the twin goals of arbitration, namely settling disputes efficiently and avoiding long and expensive litigation, absent a showing that the original panel is incapable of carrying out its duties impartially, courts will generally remand the matter to the original panel"] [internal quotation marks omitted]).

There was no basis for vacating the sanction against petitioner's counsel for violating the confidentiality order. The Decision and Order of this Court entered herein on September 10, 2013 is hereby recalled and vacated (see M-5200 decided simultaneously herewith).

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

ENTERED: DECEMBER 19, 2013

CLERK