Matter of Bradley W. Wendt, respondent, v BondFactor Company, LLC, et al., appellants.
2016-06414 (Index No. 13929/15)
Appellate Division of the Supreme Court of New York, Second Department
February 13, 2019
2019 NY Slip Op 01082
REINALDO E. RIVERA, J.P.; CHERYL E. CHAMBERS; JEFFREY A. COHEN; BETSY BARROS, JJ.
Published by New York State Law Reporting Bureau pursuant to
Saxe Doernberger & Vita, P.C., New York, NY (David G. Jordan of counsel), for appellants.
Hogan & Cassell, LLP, Jericho, NY (Michael Cassell of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to
ORDERED that the order is reversed, on the law, with costs, that branch of the appellants’ motion which was to dismiss the petition as untimely is granted, the proceeding is dismissed as untimely, and so much of the partial final arbitration award as pertained to the petitioner is reinstated.
The petitioner was employed as president of The BondFactor Company, LLC (hereinafter BondFactor), pursuant to an employment agreement. After the petitioner‘s employment was terminated by BondFactor, he, along with another employee, filed a demand for arbitration dated February 10, 2014, with the American Arbitration Association against BondFactor, Butchermark Financial Advisors, LLC, and George Butcher, the CEO of BondFactor (hereinafter collectively the appellants). An arbitration hearing was held in November 2014. On February 10, 2015, the arbitrator issued a partial final arbitration award (hereinafter the award), which, among other things, dismissed all of the petitioner‘s claims. The only issue remaining with respect to the arbitration was the other employee‘s claim for attorneys’ fees and costs. The award stated that it was final with respect to the matters addressed therein and would remain in full force and effect until such time as the final award was rendered. On May 13, 2015, the arbitrator issued a final award, which dealt solely with the issue of the other employee‘s attorneys’ fees and costs.
On August 7, 2015, the petitioner commenced this proceeding pursuant to
We reject the petitioner‘s contention that the appeal should be dismissed on the ground that the appellants submitted an inadequate appendix, as we find the appendix to be adequate (see Pucci v Trabulsy, 161 AD3d 1117, 1119).
Here, the award was a final award with respect to the petitioner‘s claims, since it dismissed all of his claims and indicated that it was final with respect to the matters addressed therein (see Mobil Oil Indonesia v Asamera Oil [Indonesia], 43 NY2d at 281; Muller v Wertzberger, 2013 NY Slip Op 50915[U]; Cotugno v Bartkowski, 37 Misc 3d 1206[A], 2012 NY Slip Op 51906[U]).
Contrary to the petitioner‘s contention, the appellants’ submission of a request for attorney‘s fees to the arbitrator on February 27, 2015, did not extend the petitioner‘s time to file his petition to vacate the award. “After an arbitrator renders an award, the arbitrator is without power to render a new award or to modify the original award, except as provided in
Here, the petitioner received a copy of the award, at the latest, on March 20, 2015, the operative date from which to measure the 90-day statute of limitations (see Matter of Case v Monroe Community Coll., 89 NY2d at 441-442; Matter of Lumbermens Mut. Cas. Co. v City of New York, 5 AD3d 684, 685; Werner Enters. Co. v New York City Law Dept., 281 AD2d 253, 253). Since the petitioner did not commence the proceeding until August 7, 2015, the Supreme Court should have granted that branch of the appellants’ motion which was to dismiss the petition as untimely (see Matter of McRae v New York City Tr. Auth., 39 AD3d 861, 861; Matter of Pender v New York State Off. of Mental Retardation & Dev. Disabilities, 27 AD3d 756, 756-757).
In light of the foregoing, we need not reach the appellants’ remaining contentions.
RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court