Asesd, LLC v Vanguard Constr. & Dev. Co., Inc.

Asesd, LLC v Vanguard Constr. & Dev. Co., Inc. 2010 NY Slip Op 08855 [79 AD3d 418] December 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Asesd, LLC, Appellant,
v
Vanguard Construction and Development Company, Inc., Respondent, et al., Respondent.

—[*1] Jaffe, Ross & Light, LLP, New York (Steven R. Miller of counsel), for appellant.

Goetz Fitzpatrick LLP, New York (John B. Simoni, Jr. of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 9, 2009, which, inter alia, denied petitioner's motion to compel respondent Vanguard to pay its half of certain fees required by the American Arbitration Association (AAA), unanimously affirmed, without costs.

As the AAA's rules provide that the remedy for a party's refusal to pay its share of arbitration fees is for the paying party to advance the nonpaying party's share of the fees, that is petitioner's recourse here. This Court cannot fashion another remedy (see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173 [1995]). Nor was this a case where the AAA's rules violated public policy or due process (cf. Brady v Williams Capital Group, L.P., 64 AD3d 127 [2009], affd as mod 14 NY3d 459 [2010]). Rather, the AAA's rules, which shift the burden to one party without informing the arbitrators of the issue, are consistent with this Court's past decisions (see e.g. Coty Inc. v Anchor Constr., 7 AD3d 438 [2004]). Concur—Tom, J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.