Matter of Morris (Hall)
Annotate this CaseDecided on August 11, 2006
Supreme Court, Madison County
In the Matter of the Arbitration of Certain Differences between Mark L. Morris and Denise Lodor-Morris, Petitioners, and Richard Hall and Mark Laskowski, Respondents.
02-1245
Linus W. Walton, Esq., for the Petitioners; Robert B. Cox, Esq., for the Respondents.
Dennis K. McDermott, J.
By order made on June 17, 2002, this Court ordered the parties to proceed to arbitration pursuant to the terms of their written agreement made in 1986. The arbitration was directed to proceed at the office of the respondents' attorney on July 24, 2002. The petitioners' arbitrator failed to appear. The respondents' arbitrator, Ralph E. Dodge, Esq., and the neutral arbitrator, Deborah K. Field, Esq., appeared and, in the absence of any objection, the hearing was conducted by the two arbitrators.
The matter languished for more than three years with no award being made. On the petitioners' application, this Court issued an order on March 6, 2006 directing the two arbitrators to make an award in writing and to serve the same on the parties' attorneys by first class mail "within thirty (30) days of service by petitioners' attorney upon them of a copy of this Order with notice of entry." Petitioners' attorney made such service upon the arbitrators on March 14, 2006.
On March 28, 2006, arbitrator Field signed an award and delivered a copy thereof to the parties' attorneys by regular mail. Therein, the arbitrator found that the respondents had violated the petitioners' rights with respect to a written water line agreement, declined to make an award of monetary damages, but did provide that petitioners were entitled to recover their attorney's fees and the costs of arbitration. Petitioners' attorney submitted his affidavit of services to the arbitrator; no [*2]affidavit was submitted in opposition. By a supplemental award made on April 18, those amounts were determined to be $2,670.00 and $1,927.50, respectively. Neither award was signed by arbitrator Dodge.
On May 18, 2006, the petitioners moved for confirmation of the awards made. In apparent response, on June 1, 2006, arbitrator Dodge signed an affidavit in which he stated that he "discussed the matter with his co-arbitrator ... and that he disagrees with her proposed decision." Petitioners object to the Dodge affidavit as untimely (see, CPLR 7507).
Petitioners submitted arbitrator Field's affirmation dated June 5, 2006 in which she avers that the only discussion she had with arbitrator Dodge took place in August, 2003, long before she forwarded her draft award to him for his review. She submits a copy of her March 1, 2006 letter to Dodge which accompanied the draft award and attests that she never received any response.
Thereafter, the Court received a letter directly from arbitrator Dodge dated June 21 (with copies apparently sent to arbitrator Field and the parties' attorneys) in which he acknowledges that he did not join with arbitrator Field in her award, explaining " ... if pushed to make a decision, I would rule against the (petitioners) based upon a lack of sufficient evidence."
The respondents have submitted no affidavit in opposition to the petitioners' motion. Instead, their attorney argues in his memorandum of law that the petitioners are precluded from objecting to arbitrator Dodge's award because they had not made a prior written objection to its lateness. Respondents' attorney further argues that the petitioners have not raised any ground under CPLR 7511 that would warrant the vacatur of Dodge's award.
The Court declines to treat either of arbitrator Dodge's submissions as an "award". There is nothing in either for the Court to confirm, nor do they warrant a motion for vacatur. His June 1 affidavit does not make any award. It expresses his disagreement with arbitrator Field's award, but does not state the nature of his disagreement. He merely asks that the Court deny the petitioners' motion to confirm the Field award. Dodge, not being a party to this proceeding, lacks standing to request any relief on this motion.
Dodge's June 21 letter is, if anything other than a nullity, an express acknowledgment by him that he has not made an award. He and arbitrator Field were directed to submit their award to the parties' attorneys, not to the Court, in the expectation that one or the other attorney would make an appropriate motion to confirm the award. There has been no cross-motion made by the respondents to confirm Dodge's "award". Dodge's June 21 letter, not being made under oath or affirmed under penalty of perjury, and not being submitted by either of the parties, is not properly submitted on this motion. CPLR 2214.
The respondents have not moved to vacate the award made by arbitrator Field and their time to do so has expired. CPLR 7511 (a). The July 24, 2002 arbitration hearing proceeded in the absence of one of the three designated arbitrators. By proceeding with the hearing, the parties waived that objection. CPLR 7506 (f).
The award must be made by a majority of the arbitrators. CPLR 7506 (e). Given the circumstances presented, that would ordinarily require both arbitrators to join in the award. However, where only one of the arbitrators has made an award, that has been held to be sufficient under CPLR 7506 (f) where the parties agree in writing to waive the majority requirement. Matter of Instituto de Resseguros do Brasil v. First Star Ins. Co., 221 AD2d 266 (1st Dept 1995). CPLR 7506 (f) further provides that the requirements of that section, including the majority requirement, are also waived "if the parties continue with the arbitration without objection." The majority [*3]requirement may be waived "by the (parties') agreement or otherwise, as permitted by the CPLR" (emphasis added). 5 NY Jur2d, "Arbitration and Award", § 161, p. 317, citing Advisory Committee Notes to CLS CPLR § 7506.
Under these unique circumstances, the award made by one arbitrator is legally sufficient to constitute an award. By failing to object on the ground that the majority requirement was not followed (CPLR 7511 [b] [1] [iv]), the respondents have waived that objection.
The petitioners' motion is granted in all respects and the award made by arbitrator Field dated March 28, 2006 and the supplemental award made on April 18, 2006 are hereby confirmed. This Decision shall constitute the Judgment of the Court (CPLR 7514).
Dated: August 11, 2006.ENTER:
_______________________________
J.S.C. (Acting)
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