Aigen v. Giannone
| Decision Date | 07 July 1975 |
| Parties | George AIGEN et al., Appellants, v. Albert S. GIANNONE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lawrence B. Florio, New York City, for appellants.
Goldberg & Gelman, New York City (Ernest H. Gelman, New York City, of counsel), for respondent.
Before HOPKINS, Acting P.J., and COHALAN, CHRIST, BRENNAN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, petitioners appeal from an order of Supreme Court, Nassau County, dated January 10, 1975, which denied the application and granted respondent's cross motion to vacate and modify the award to the extent of remanding the matter to the American Arbitration Association for rehearing and determination De novo.
Order reversed, without costs, and matter remanded to the original arbitrators for clarification of their award.
We hold that the arbitrators' award was not clear and definite. However, any uncertainty about the purport of the award should be submitted to the arbitrators for clarification and not to the courts (cf. Matter of Nationwide Gen. Ins. Co. v. Investors Ins. Co. of America, 37 N.Y.2d 91, 371 N.Y.S.2d 463, 332 N.E.2d 333 (dec. June 9, 1975); Matter of Labor Relations Section of Northern N.Y. Bldrs. Exch. v. Gordon, 41 A.D.2d 25, 28--29, 341 N.Y.S.2d 714, 718--719). Further, since respondent apparently did not object to the arbitrators' consideration of an item termed 'closing moneys', respondent has waived any objection that the item was not within the original arbitration agreement and therefore could not be arbitrated. That which the parties agree to submit may be arbitrated even if the items thus submitted were not within the original arbitration agreement (see United Buying Serv. Int. Corp. v. United Buying Serv. of Northeastern N.Y., 38 A.D.2d 75, 327 N.Y.S.2d 7, affd., 30 N.Y.2d 822, 334 N.Y.S.2d 911, 286 N.E.2d 284).
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