Matter of Bernstein Family Limited Partnership v. Sovereign Partnership, L.P.

• Citation: 66 A.D.3d 1,2009 NY Slip Op 05838,883 N.Y.S.2d 201
• Decision Date: 14 July 2009
• Docket Number: 4495.
• Parties: In the Matter of BERNSTEIN FAMILY LIMITED PARTNERSHIP et al., Respondents, v. SOVEREIGN PARTNERS, L.P., et al., Appellants.
• Court: New York Supreme Court Appellate Division

66 A.D.3d 1 883 N.Y.S.2d 201 2009 NY Slip Op 05838 In the Matter of BERNSTEIN FAMILY LIMITED PARTNERSHIP et al., Respondents,
v.
SOVEREIGN PARTNERS, L.P., et al., Appellants. 4495. Appellate Division of the Supreme Court of New York, First Department. Decided July 14, 2009.

[66 A.D.3d 2]

Arnold & Porter LLP, New York City (Erik C. Walsh and Stewart D. Aaron of counsel), for appellants.

McCausland Keen & Buckman, Radnor, Pennsylvania (Glenn S. Gitomer of counsel), and Louis F. Burke, P.C., New York City (Louis F. Burke and Lesli Wybiral of counsel), for respondents.

OPINION OF THE COURT

McGUIRE, J.

Petitioners commenced this proceeding pursuant to CPLR article 75 to confirm an arbitration award rendered in their favor against respondents. In opposition to the petition to confirm, respondents contended that they had complied in full with the award—a contention vigorously disputed by petitioners

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—and that the petition thus was moot. We hold that the parties' dispute over compliance is itself academic and that Supreme Court correctly granted the petition to confirm the award.

Supreme Court rejected respondents' contention that the petition was moot on two grounds. First, Supreme Court found that respondents "have not satisfied the award entirely." Although respondents advance several arguments in support of their position that this finding of fact was erroneous, if the other, legal ground on which Supreme Court relied is valid, then the factual finding was unnecessary and we need not address respondents' arguments challenging it. Second, Supreme Court concluded that the petition was not moot "[i]n any event, [as] petitioners are entitled to confirmation of the award despite complete compliance" (citing Matter of Allstate Ins. Co. v Dental Health Care, P.C., 24 AD3d 437, 438 [2d Dept 2005]).

Although petitioners correctly argue that Matter of Allstate Ins. Co. supports Supreme Court's determination that they are entitled to a judgment confirming the award even if respondents have complied completely with the award, respondents correctly argue that Supreme Court's determination is inconsistent with our decision in Organization of Staff Analysts v City of New York (277 AD2d 23 [2000]). For the reasons stated below, we conclude that we should not follow Organization of Staff Analysts.

CPLR 7510 states that the court "shall confirm an award . . . unless the award is vacated or modified upon a ground specified in section 7511" (emphasis added); mootness is not one of the grounds specified in CPLR 7511. Accordingly, petitioners argue that the Legislature has mandated confirmation of an award under all circumstances—including those in which the petition is academic or is otherwise moot—where, as here, the award is not vacated or modified.

Geneseo Police Benevolent Assn., Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Village of Geneseo (91 AD2d 858 [1982], affd for reasons stated 59 NY2d 726 [1983]) supports petitioners' position. In Geneseo Police, Supreme Court refused to confirm the arbitration award because the petition was premature. The Fourth Department reversed and confirmed the award. After noting that the "only purported ground . . . for resisting confirmation of the arbitration award was that it was premature," the Court stated that

"[o]nly those grounds for resisting confirmation of

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an award specified in CPLR 7511 may be the basis for vacating or modifying an arbitration award . . . Since the application to confirm the award was made within one year (CPLR 7510), and none of the grounds set forth in CPLR 7511 was advanced to vacate the award, Special Term erroneously refused to confirm the award" (id.).

The Court of Appeals affirmed the Fourth Department's order for the reasons stated.

Respondents argue that Geneseo Police is distinguishable in that Supreme Court refused to confirm the arbitration award not because the petition was moot but because it was premature. As respondents argue in their reply brief, "[b]ecause the respondent in [Geneseo Police] had not yet satisfied the arbitration award, an open controversy still existed." We are thus invited to conclude that the possibility of compliance with an award does not render a petition to confirm premature, but the actuality of compliance does render such a petition moot. Respondents elaborate with argument that is of constitutional dimension. Indeed, their main brief begins with the assertion that "[t]his appeal concerns the trial court's failure to adhere to the fundamental principle of jurisprudence prohibiting courts from hearing a case in the absence of an actual controversy." When an arbitration award has been complied with in full, respondents argue that judicial confirmation of the award is pointless, i.e., academic (citing, among other cases, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). As the "principle[] which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions[] is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary" (id.), respondents essentially argue that the word "shall" in CPLR 7510 should not be construed as a legislative mandate to the judicial branch to exercise its powers and confirm an award even when the petition is academic.

Regardless of whether the Court of Appeals might confine Geneseo Police to its particular facts (see Matter of Seelig v Koehler, 76 NY2d 87, 92 [1990], cert denied 498 US 847 [1990]), we should not. The rationale of the Court of Appeals in Geneseo Police—"[o]nly those grounds for resisting confirmation of an award specified in CPLR 7511 may be the basis for vacating or modifying an arbitration award"—applies with equal force to this case. So, too, do the terms of CPLR 7510, which state that

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the court "shall confirm an award . . . unless the award is vacated or modified upon a ground specified in section 7511" (emphasis added). Giving the word "shall" its ordinary meaning, we are directed unequivocally by CPLR 7510 to confirm an arbitration award if a timely application is made whenever the award is not vacated or modified under CPLR 7511.

In Matter of Allstate Ins. Co. v Dental Health Care, P.C. (24 AD3d 437 [2005]), the Second Department cited Geneseo Police, among other precedents, in reversing an order that dismissed a petition to confirm an arbitration award. After stating that the petition to confirm was timely and that the respondent had not advanced any of the grounds specified in CPLR 7511 for vacating or modifying the award, the panel held that ...