Scarselli v Moas

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Scarselli v Moas 2017 NY Slip Op 32109(U) October 4, 2017 Supreme Court, New York County Docket Number: 653100/2017 Judge: Saliann Scarpulla Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/06/2017 10:09 AM 1] NYSCEF DOC. NO. 36 INDEX NO. 653100/2017 RECEIVED NYSCEF: 10/06/2017 SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 39 -----------------------------------------------------------------------------------X BRUNO SCARSELLI, N.B.S. DIAMONDS, INC., INDEX NO. 653100/2017 Petitioners, MOTION DATE MOTION SEQ. NO. -vMATTHEW MOAS, CHAIM MOAS, AC INTERCONTINENTAL VENTURES, LLC, AC INTERCONTINENTAL GEM DIAMONDS, LLC, AC INTERCONTINENTAL LLC 6/7/2017 001 DECISION AND ORDER Respondents. -----------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 were read on this application to/for Confirm/Disapprove Award/Report HON. SALIANN SCARPULLA: This is a petition to confirm an arbitration award of the Arbitration Tribunal of the Diamond Dealers Club, dated June 23, 2016. In the award, the arbitrators, among other things, awarded petitioners, jointly and severally, monetary relief against respondents, jointly and severally, and issued an injunction requiring respondents to return to petitioners one of the two diamonds at issue in the arbitration proceeding. The respondents oppose confirmation of the arbitration award on the ground that they were denied the right to an attorney at the arbitration hearing. This argument relates to the arbitrators' refusal to adjourn the first arbitration hearing date. Pursuant to CPLR 7506 (b), whether to grant an adjournment is in the discretion of the arbitrator, and the arbitrator's exercise 653100/2017 SCARSELLI, BRUNO vs. MOAS, MATTHEW Motion No. 001 1 of 4 Page 1of4 [*FILED: NEW YORK COUNTY CLERK 10/06/2017 10:09 AM 2] NYSCEF DOC. NO. 36 INDEX NO. 653100/2017 RECEIVED NYSCEF: 10/06/2017 of that discretion is subject to the abuse of discretion review. See MVIAC v. NYC East-West Acupuncture, P.C., 77 AD3d 412, 425 (1 51 Dep't 2010). The documents submitted here shows that: the parties executed an ADR and Arbitration Agreement in May 2016, in which respondents agreed to meet for a pre-arbitration settlement conference and specifically waived "any right to apply to any court for a stay of arbitration" after the settlement conference; after respondents declined to appear for the pre-arbitration settlement conference, petitioners immediately filed the demand for arbitration; on May 23, 2016 the arbitrators notified the parties of the arbitration date, June 16, 2016; respondents retained new counsel late in the evening on June 15, 2016; new counsel then sought an adjournment on the day of the arbitration, which late request was denied. Respondents' new counsel, while not present during the first arbitration session, appeared and represented respondents at the subsequent arbitration session. After review of these documents, I find that respondents have failed to show that the arbitrators abused their discretion in denying an adjournment of the first arbitration session. Respondents also object to petitioners' request for a judgment for attorney's fees, because in the award the arbitrators initially stated that "Scarselli's claims for legal and other fees are denied." While it is true that the arbitrators initially declined to award petitioners their attorney's fees, the arbitrators also stated, later in the award, that, in the event that the party against whom the award was made failed to comply with the award, thus requiring the prevailing party to commence an action to confirm the arbitration award, "the party who confirms such award shall also be entitled to a judgment against the other party or parties against whom the award was rendered for legal expenses in a sum equal to 15% of the award confirmed, or $1,500.00 which ever sum is greater." 653100/2017 SCARSELLI, BRUNO vs. MOAS, MATTHEW Motion No. 001 2 of 4 Page 2 of 4 [*FILED: NEW YORK COUNTY CLERK 10/06/2017 10:09 AM 3] NYSCEF DOC. NO. 36 INDEX NO. 653100/2017 RECEIVED NYSCEF: 10/06/2017 Here, respondents do not deny that they have failed to comply with the arbitration award, thus requiring petitioners to commence this Article 75 proceeding to confirm the arbitration award. Pursuant to the arbitration award, by failing to comply with its provisions, respondents have triggered the attorney's fees award to petitioners. Additionally, in the May 2016 ADR and Arbitration Agreement executed by respondents, they separately and specifically agreed to an attorney's fees award if petitioners were required to enforce an arbitration award by converting it into a judgment in an Article 75 proceeding. I therefor find that the petitioners' request for a judgment for attorney's fees is fully supported by the arbitration award and confirmed by the parties' separate ADR and Arbitration Agreement. Finally, respondents contend that petitioners have been paid the amount awarded in the arbitration award by their insurance carrier, and that petitioners have assigned their claims against respondents to the insurance carrier. The insurance carrier has, in turn, sued respondents in this Court. Respondents attach to their opposition papers a complaint filed by petitioners' insurance carrier. This complaint is brought by Certain Underwriters At Interest At Lloyd's of London ("Lloyds of London") on behalf of petitioners and non-party Joseph Gad, Inc. In the complaint, Lloyds alleges that it paid petitioners and Joseph Gad, Inc. for their losses on one of the two diamonds at issue in the arbitration proceeding. Lloyds of London seeks a declaration that the arbitration award at issue in this proceeding is "a binding judgment" against respondents, money damages from respondents for conversion of the diamond, return of the diamond, and punitive damages. Pursuant to CPLR 7510, a court is required to confli-m an arbitration award unless the award is vacated or modified on a ground specified in CPLR 7511. Respondents did not seek to 653100/2017 SCARSELLI, BRUNO vs. MOAS, MATTHEW Motion No. 001 3 of 4 Page 3 of 4 [*FILED: NEW YORK COUNTY CLERK 10/06/2017 10:09 AM 4] INDEX NO. 653100/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 10/06/2017 vacate or modify the arbitration award pursuant to CPLR 7511, and partial payment of the arbitration award amount is not a ground set forth in CPLR 7511 for vacatur or modification of the arbitration award. Therefore, the fact that petitioners' insurance carrier may have paid petitioners for part of the monetary damages set forth in the arbitration award is not a ground upon which I may refuse to confirm the arbitration award. See Bernstein Family Ltd. Partnership v. Sovereign Partners, L. P., 66 A.D.3d I (1st Dep't 2009); see also Pine Street Associates L.P. v. Southridge Partners, L.P., 107 A.D.3d 95, 102 (J5t Dep't 2013). Respondents may allege partial payment in any subsequent proceeding to enforce the judgment on the arbitration award. In accordance ~ith the foregoing, it is ORDERED and ADJUDGED that the petition to confirm the arbitration award of the Arbitration Tribunal of the Diamond Dealers Club, dated June 23, 2016, is granted. Submit proposed judgment ori notice. 10/4/2017 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT D D OTHER REFERENCE I 653100/2017 SCARSELLI, BRUNO vs. MOAS, MATTHEW4 Motion No. 001 of 4 Page 4 of 4

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