169 A.D.3d 808
N.Y. App. Div.2019Background
- Petitioner Bradley Wendt was president of BondFactor Co., LLC and employed under an employment agreement; his employment was later terminated.
- Wendt and another employee filed a demand for arbitration with the AAA on February 10, 2014 against BondFactor, Butchermark, and George Butcher. An arbitration hearing occurred in November 2014.
- On February 10, 2015, the arbitrator issued a partial final award dismissing all of Wendt’s claims and stating the award was final as to the matters addressed; only the co‑worker’s fee claim remained. A final award on the fee issue issued May 13, 2015.
- Wendt received a copy of the partial award by March 20, 2015 (at the latest). He filed a CPLR 7511 petition to vacate the partial award on August 7, 2015.
- Appellants moved to dismiss the petition as untimely under CPLR 7511(a) (90‑day limitations period); the Supreme Court denied the motion and granted the petition. Appellate Division reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the partial award dismissing Wendt’s claims was a final, reviewable award | Wendt argued the partial award was not final because the arbitration proceeding had not fully concluded and arbitrator later addressed fee issues | Appellants argued the partial award was final as to Wendt’s claims and triggered the 90‑day CPLR 7511 limitations period | The Court held the partial award was final as to Wendt’s claims and subject to CPLR 7511(a) |
| Whether appellants’ later request (Feb 27, 2015) for attorneys’ fees tolled or extended the 90‑day period | Wendt contended the fee request affected finality/tolling so his petition was timely | Appellants argued a post‑award fee request did not modify the award or extend the limitations period absent CPLR 7509 grounds | The Court held the fee request did not extend the 90‑day period; arbitrator lacked power to modify except under CPLR 7509 and no grounds were shown |
| Whether Wendt timely filed his CPLR 7511 petition | Wendt maintained his petition was timely based on his view of delivery/finality | Appellants maintained Wendt received the award by March 20, 2015 so his August 7, 2015 petition was untimely | The Court held delivery by March 20, 2015 started the 90‑day clock; Wendt’s August filing was untimely and the petition must be dismissed |
| Whether any other grounds required remand or consideration | Wendt argued other procedural or jurisdictional issues (not dispositive here) | Appellants argued timeliness was dispositive | The Court did not reach remaining contentions because timeliness resolved the case |
Key Cases Cited
- Mobil Oil Indonesia v. Asamera Oil (Indonesia), 43 N.Y.2d 276 (N.Y. 1977) (arbitrator’s award is final when it disposes conclusively of submitted matters)
- Matter of Case v. Monroe Community College, 89 N.Y.2d 438 (N.Y. 1996) (CPLR 7511(a) 90‑day rule measured from delivery of award)
- Silber v. Silber, 204 A.D.2d 527 (2d Dep’t 1994) (after issuance, arbitrator cannot render new or modified award except as allowed by statute)
- Matter of Bianchi v. Katz, 111 A.D.3d 1012 (2d Dep’t 2013) (post‑award submissions do not toll or extend CPLR 7511(a) absent statutory grounds)
- Matter of Lumbermens Mut. Cas. Co. v. City of New York, 5 A.D.3d 684 (2d Dep’t 2004) (delivery date governs start of CPLR 7511 limitations period)
- Matter of McRae v. New York City Transit Auth., 39 A.D.3d 861 (2d Dep’t 2007) (CPLR 7511 motions dismissed when petition filed after 90 days)