Matter of Cavanagh v Hayes

Matter of Cavanagh v Hayes 2022 NY Slip Op 06081 Decided on November 01, 2022 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 and Entered: November 01, 2022
Before: Gische, J.P., Gesmer, Oing, Kennedy, Scarpulla, JJ.
Index No. 656706/21 Appeal No. 16579-,16579A Case No. 2022-01040, 2022-01045

[*1]In the Matter of John Cavanagh, Petitioner-Appellant,

v

John Hayes et al., Respondents-Respondents.

Agulnick & Gogel, LLC, Port Washington (William A. Gogel of counsel), for appellant.

Danny Grace PLLC, New York (Douglas Mace of counsel), for respondents.

Judgment, Supreme Court, New York County (Jennifer Schecter, J.), entered January 27, 2022, which confirmed an arbitration award in favor of respondent John Hayes in the sum of $103, 272.86 plus interest, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about January 11, 2022, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court properly confirmed the arbitration award as it is not irrational or beyond the scope of the arbitrator's authority (see Elul Diamonds Co. Ltd. v Z Kor Diamonds, Inc., 50 AD3d 293 [1st Dept 2008]; see also Matter of McIver-Morgan Inc. v Dal Piaz, 108 AD3d 47, 55 [1st Dept 2013]). Contrary to petitioner's argument, the arbitrator conducted an accounting in resolving the parties' dispute over their respective interest in respondent F & J Realty, Inc. (F & J Realty) (see Roslyn Union Free Sch. Dist. v Barkan, 16 NY3d 643, 653 [2011]). Paragraph 4 of the shareholders agreement provides that contributions to F & J Realty made by either shareholder will be repaid before any distributions are made to the shareholders. Based on the shareholder agreement and an assessment of the evidence presented, including the testimony of Patrick A. Wren, a Certified Public Accountant, who reviewed the bank statements, copies of checks, and tax returns of F & J Realty, from December 7, 2018 through September 3, 2021, the arbitrator concluded that respondent Hayes is owed $103,272.86 plus interest on the funds Hayes advanced to F & J, to be paid upon dissolution of the corporation (see e.g. Matter of Metrobuild Assoc., Inc. v Nahoum, 51 AD3d 555, 557 [1st Dept 2008], lv denied 11 NY3d 704 [2008]).

We have considered petitioner's remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 1, 2022