Matter of Matza v. Oshman

• Decision Date: 24 October 2006
• Docket Number: 9332B.,9332A.,9332.
• Citation: 33 A.D.3d 493,823 N.Y.S.2d 47,2006 NY Slip Op 07612
• Parties: In the Matter of MORRIS E. MATZA, Respondent, v. OSHMAN, HELFENSTEIN & MATZA et al., Appellants.
• Court: New York Supreme Court — Appellate Division

33 A.D.3d 493

823 N.Y.S.2d 47

2006 NY Slip Op 07612

In the Matter of MORRIS E. MATZA, Respondent, v. OSHMAN, HELFENSTEIN & MATZA et al., Appellants.

9332.

9332A.

9332B.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 24, 2006.

Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered August 4, 2005, awarding petitioner the sum of $51,014.40, based on orders, same court and Justice, both entered August 2, 2005, which granted petitioner's motion to confirm an arbitration award and adhered to that decision on reargument, unanimously modified, on the law and the facts, to the extent of vacating that portion of the judgment awarding petitioner $34,640.39 in attorneys' fees, and otherwise affirmed, without costs. Appeals from the aforesaid orders unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Respondents failed to set forth cognizable grounds for vacatur of the award of petitioner's share of law firm fees and reimbursement of unincorporated business tax (see CPLR 7511 [b] [1]; Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]; Matter of Campbell v New York City Tr. Auth., 32 AD3d 350 [2006]).

However, attorneys' fees may not be awarded in arbitration absent provision therefor in a statute or the agreement to arbitrate, or if requested by the parties during the arbitration process (Emery Roth & Sons v M&B Oxford 41, 298 AD2d 320, 321 [2002], lv denied 99 NY2d 509 [2003]). Here, only the third alternative is implicated, which requires a request for such fees by all parties. It was purely speculative for the court, in its initial order, to rely on the fact that the arbitrator had addressed the issue of attorneys' fees in concluding that all parties had requested them.

Upon reargument, the court's reliance on our decision in Matter of Warner Bros. Records (PPX Enters.) (7 AD3d 330 [2004]) was misplaced, in that both sides in that case had affirmatively requested attorneys' fees. In Matter of Stewart Tabori & Chang (Stewart) (282 AD2d 385 [2001], lv denied 96 NY2d 718 [2001]), both sides' arbitration pleadings contained boilerplate requests for attorneys' fees, but one side never reiterated that request during the arbitration, objected to any such award during its closing argument, and informed the panel it was not seeking such fees because the panel lacked authority to award them. The instant situation presents a middle ground, in that, after...