Field v. BDO USA, LLP

• Decision Date: 11 June 2015
• Docket Number: 600010/12, 15388N, 15387
• Parties: In re Denis M. FIELD, Petitioner–Appellant, v. BDO USA, LLP, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 497
11 N.Y.S.3d 143
2015 N.Y. Slip Op. 04934

In re Denis M. FIELD, Petitioner–Appellant
v.
BDO USA, LLP, Respondent–Respondent.

600010/12, 15388N, 15387

Supreme Court, Appellate Division, First Department, New York.

June 11, 2015.

11 N.Y.S.3d 143

Shapiro, Arato LLP, New York (Eric S. Olney of counsel), for appellant.

DLA Piper LLP (U.S.), New York (Cary B. Samowitz of counsel), for respondent.

MAZZARELLI, J.P., SWEENY, GISCHE, CLARK, JJ.

Opinion

129 A.D.3d 497

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 22, 2013, which dismissed the petition to vacate the arbitration award, dated July 17, 2012, and order, same court (Saliann Scarpulla, J.), entered November 25, 2014, which denied petitioner's motion to renew the petition, unanimously affirmed, with costs.

With respect to the renewal order, petitioner Field has failed to meet his heavy burden of establishing that the arbitration award should be vacated on the basis of fraud (Imgest Fin. Establishment v. Shearson Lehman Hutton, 172 A.D.2d 291, 291, 568 N.Y.S.2d 104 [1st Dept.1991] ). Such showing can only be established “by clear and convincing evidence” that the fraud “materially related to an issue in [the] arbitration,” and that “the

11 N.Y.S.3d 144

fraud would not have been discoverable upon exercise of due diligence prior

129 A.D.3d 498

to or during the arbitration” (id. ). Field failed to make either of these showings.

Specifically, Field has not shown—and the record does not establish by clear and convincing evidence—that BDO was in possession of the Skadden memo or was aware of the possible negative implications stemming from the use of certain tax shelters in 2001. Moreover, even if BDO did have this knowledge and fraudulently...