Matter of BDO USA, LLP v Field

Matter of BDO USA, LLP v Field 2010 NY Slip Op 09401 [79 AD3d 604] December 21, 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

In the Matter of BDO USA, LLP, Appellant,
v
Denis M. Field, Respondent.

—[*1] DLA Piper LLP (US), New York (Christopher P. Hall of counsel), for appellant.

Kostelanetz & Fink, LLP, New York (Brian C. Wille of counsel), for respondent.

Orders, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 12, 2010, which, inter alia, denied the petition to stay arbitration and to modify the subject arbitration agreement, and granted respondent's motion to compel arbitration, respectively, unanimously affirmed, with costs.

The provision of the amendment to settlement agreement that states that "the arbitrator shall decide the dispute based on a written submission from each Party and a non-evidentiary hearing" was not unconscionable (see generally Yonir Tech., Inc. v Duration Sys. [1992] Ltd., 244 F Supp 2d 195, 209 [SD NY 2002]). The provision was neither the result of disparate bargaining power nor "grossly unreasonable" under the circumstances (see Gillman v Chase Manhattan Bank, 73 NY2d 1, 10 [1988] [internal quotation marks omitted]).

We have considered petitioner's remaining arguments and find them unavailing. Concur—Tom, J.P., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.