Matter of Raymond J. Spasiano v 1717 Capital Management Company

Matter of Spasiano (1717 Capital Mgt. Co.) 2003 NY Slip Op 18572 [1 AD3d 902] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of the Arbitration between Raymond J. Spasiano, Appellant-Respondent, and 1717 Capital Management Company, Respondent-Appellant.

— Appeal and cross appeal from an order of Supreme Court, Erie County (Makowski, J.), entered June 14, 2002, which granted the petition in part and confirmed the arbitration award in part.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying respondent's cross motion to vacate the arbitration award in its entirety, granting the petition to confirm the arbitration award in its entirety and ordering that judgment be entered in favor of petitioner in the amount of $306,700, plus interest at the rate of 5.18% accruing from March 15, 2001, together with the filing fee of $500 and as modified the order is affirmed without costs.

Memorandum: Supreme Court erred in failing to grant the petition to confirm the arbitration award in its entirety (see CPLR 7510). The parties submitted the entire matter in controversy to arbitration, including whether the Uniform Termination Notice for Securities Industry Registration (U-5 notice) filed by respondent with the National Association of Securities Dealers is absolutely privileged. Contrary to respondent's contention, there is not "a well-defined constitutional, statutory or common law of this State" according U-5 notices absolute immunity in every circumstance (Matter of New York State Correctional Officers & Police Benevolent Assoc. v State of New York, 94 NY2d 321, 328 [1999]; compare Fahnestock & Co. v Waltman, 935 F2d 512 [1991], cert denied 502 US 942 [1991] [applying New York law], with Herzfeld & Stern v Beck, 175 AD2d 689 [1991], lv dismissed 79 NY2d 914 [1992], 82 NY2d 789 [1993]). Thus, public policy does not preclude enforcement of the award (see Matter of New York City Tr. Auth. v Transport Workers Union of Am., 99 NY2d 1, 7 [2002]). In the absence of a record of the arbitration hearing, we are unable to consider respondent's further contention that the award is wholly irrational in light of the evidence presented at the hearing (see Matter of Caprara Auto Sales [Wilcox], 288 AD2d 955 [2001]). We therefore modify the order by denying respondent's cross motion to vacate the award in its entirety, granting the petition to confirm the award in its entirety and ordering that judgment be entered in favor of petitioner in the amount of $306,700, plus interest at the rate of 5.18% accruing from March 15, 2001, together with the filing fee of $500. Present—Wisner, J.P., Hurlbutt, Kehoe and Lawton, JJ.