Matter of Granet & Assoc., Inc. v Thom Filicia, Inc.

Matter of Granet & Assoc., Inc. v Thom Filicia, Inc. 2018 NY Slip Op 02017 Decided on March 22, 2018 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 March 22, 2018
Renwick, J.P., Manzanet-Daniels, Kahn, Kern, Singh, JJ.
6076 654921/16

[*1]In re Granet & Associates, Inc., Petitioner-Appellant,

v

Thom Filicia, Inc., Respondent-Respondent.

Tuttle Yick LLP, New York (David G. Skillman of counsel), for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Michael Wynn of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about March 15, 2017, which denied the application of petitioner Granet & Associates, Inc. to confirm the arbitration award and dismissed the petition, unanimously reversed, on the facts and law, with costs, to confirm the portion of the award awarding the stipulated amount, including the arbitrator's modification, and the matter remitted to the arbitrator for determination of whether respondent Thom Filicia, Inc. (TFI) may deduct related expenses from fees due to Granet for royalties received after March 7, 2016.

TFI did not seek to vacate or modify the award on a ground specified in CPLR 7511, and therefore, the court was obliged to confirm the award under CPLR 7510 (the court "shall confirm an award . . . unless the award is vacated or modified upon a ground specified in section 7511")(emphasis added). Accordingly, the IAS court should have confirmed so much of the arbitration award that awarded payment of the stipulated amount (see Matter of Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 1, 3 [1st Dept 2009]).

The issue of whether TFI may deduct "related expenses" under the paragraph entitled "Confirmation" in the parties' licensing agreement is the subject of a new controversy arising from TFI's payments of fees to Granet from royalties that TFI received after March 7, 2016. Thus, the matter should be remitted to the arbitrator for a hearing and determination solely of that issue (Matter of Board of Educ. of Amityville Union Free School Dist. v Amityville Teacher's Assn., 62 AD3d 992, 993 [2d Dept 2009]).

We have considered and rejected the parties' remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 22, 2018

DEPUTY CLERK