Plaintiff was employed as the superintendent of a building
owned by defendant Park Briar, Inc. ("Park Briar"), beginning
on or about April 25, 1987. Affidavit of James Roche, sworn to
on August 1, 1990 ("Roche Aff."), ¶ 3; Affidavit of Michael
Richter, sworn to on September 28, 1990 ("Richter Aff."), ¶ 2.
On or about June 24, 1989, plaintiff was discharged from his
position as superintendent by the Park Briar board of
directors, Roche Aff. ¶ 2; Richter Aff. ¶ 2, allegedly because
"his performance was unsatisfactory on numerous occasions, he
was belligerent when interacting with tenants and members of
the Board of Directors and because he appeared at a Board
meeting in an unfit condition to respond to questions
concerning his performance. In addition, [he allegedly]
regularly took off Saturday and Sunday even though his work
week was Sunday through Thursday." Richter Aff., Exh. A at 2.
At the time of plaintiff's discharge, the managing agent of the
building was defendant Trump Management, Inc. ("Trump");
shortly thereafter, defendant Richter Properties, Inc.
("Richter Properties") became the building's managing agent.
Richter Aff. ¶ 2.
Plaintiff appealed his discharge pursuant to the grievance
provision of the collective bargaining agreement between the
Union and Park Briar, and the dispute was submitted to
arbitration before the Office of the Contract Arbitrator.
Plaintiff also alleged as issues for arbitration that he had
been underpaid, that he had worked unpaid overtime and
holidays, that he was not paid for unused sick days, and that
his car had been damaged in Park Briar's garage. The total
amount plaintiff claimed was approximately $22,000. Roche Aff.
¶¶ 4, 6. The first hearing was originally scheduled for August
21, 1989, but was adjourned to September 8, 1989, at the
request of Park Briar due to the change in managing agent from
Trump to Richter Properties. Richter Aff. ¶ 4. On September 8,
1989, the hearing was adjourned to October 25, 1989, by the
Union at plaintiff's request, Amended Affidavit of John J. Leo,
sworn to on August 13, 1990 ("Leo Aff."), ¶ 4, and over the
objection of Park Briar. Richter Aff. ¶ 5. On October 25, 1989,
the hearing commenced. Plaintiff appeared without the necessary
documents that supported his overtime claim, and plaintiff's
then-counsel, Brendan Egan, Esq., of Manning, Raab, Dealy &
Sturm, informed plaintiff that these documents were crucial and
should be brought to the next hearing, scheduled for November
29, 1989. Leo Aff. ¶ 4.
On November 29, 1989, Park Briar appeared, prepared to
continue with the hearing. Plaintiff again failed to bring all
the documents that he claimed supported his overtime claim. Leo
Aff. ¶ 5. The hearing was adjourned, at plaintiff's request and
over the objection of Park Briar, to January 2, 1990. Richter
Aff. ¶ 7. On January 2, 1990, Park Briar appeared, again
prepared to proceed with the hearing, and plaintiff again
failed to bring the overtime documents. Leo Aff. ¶ 5. Again,
however, the hearing was adjourned at plaintiff's request and
over the objection of Park Briar, in this instance until
February 27, 1990. Richter Aff. ¶ 8. On February 27, 1990, the
hearing finally proceeded to its conclusion. At the end of the
presentation of evidence, plaintiff again requested an
adjournment of the hearing, allegedly for the purpose of
presenting additional evidence relating to his claims, because
plaintiff had again failed to bring all of the documents that
he said supported his claims. Park Briar strenuously objected,
and the Arbitrator denied the request for yet another
adjournment of the hearing. However, the Arbitrator did grant
plaintiff the right to submit any further documents or
materials in support of his claims, setting March 14, 1990, as
the deadline to do so. Richter Aff. ¶¶ 9, 10; Leo Aff. ¶ 5.
Plaintiff did not serve these documents on Park Briar until
March 16, 1990. Richter Aff. ¶ 11. Over Park Briar's written
objection, however, see Richter Aff., Exh. H, the Arbitrator
nevertheless considered plaintiff's untimely-served documents,
Richter Aff. ¶¶ 13, 16; Leo Aff. ¶ 5, as is apparent from
references in the Award to these documents.
The Arbitrator issued the Award on May 2, 1990, finding that
Park Briar had just and sufficient cause to discharge
plaintiff, that no basis existed for any payments arising from
any damage to plaintiff's car, and that plaintiff would receive
five weeks severance pay and eighteen hours overtime pay.
Plaintiff subsequently asked that the hearing be reopened, and
the Arbitrator denied that request. Richter Aff. ¶ 14.
Plaintiff then commenced this action, and shortly thereafter
moved to vacate the Award.
Section 10(c) of the Federal Arbitration Act, pursuant to
which plaintiff now moves to vacate the Award, provides as
In either of the following cases the United States
court in and for the district wherein the award
was made may make an order vacating the award upon
the application of any party to the arbitration
(c) Where the arbitrators were guilty of
misconduct in refusing to postpone the hearing,
upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the
controversy; or of any other misbehavior by which
the rights of any party have been prejudiced.
9 U.S.C. § 10(c). Plaintiff claims that the Arbitrator's
refusal to grant his request for an adjournment of the February
27, 1990 hearing to permit plaintiff to testify regarding the
documents that he eventually served on March 16, 1990,
constituted misconduct within the scope of § 10(c).
It is well settled that a district court's review of an
arbitration award is severely limited. See Ottley v.
Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987); Americas
Insurance Co. v. Seagull Compania Naviera, S.A., 774 F.2d 64,
67 (2d Cir. 1985) (scope of review of arbitration award is
"very narrowly limited"); Sperry International Trade, Inc. v.
Government of Israel, 689 F.2d 301, 304 (2d Cir. 1982); Atlas
Assurance Company of America v. American Centennial Insurance
Co., 1991 WL 4741, 1991 U.S.Dist. 532 (S.D.N.Y. Jan. 16, 1991);
Jardine Matheson & Co. v. Saita Shipping, Ltd., 712 F. Supp. 423,
426 (S.D.N.Y. 1989); Concourse Beauty School, Inc. v.
Polakov, 685 F. Supp. 1311, 1315 (S.D.N.Y. 1988); Zephyros
Maritime Agencies, Inc. v. Mexicana De Cobre, S.A., 662 F. Supp. 892,
894 (S.D.N.Y. 1987) (district court review of arbitration
award is "severely limited"); Transit Casualty Co. v. Trenwick
Reinsurance Co., Ltd., 659 F. Supp. 1346, 1350 (S.D.N.Y. 1987)
(standard of review of arbitration award is "extremely
narrow"), aff'd without op., 841 F.2d 1117 (2d Cir. 1988). In
order to vacate an arbitration award on the ground of
arbitrator misconduct, as provided by § 10(c), "[t]he
misconduct must amount to a denial of fundamental fairness of
the arbitration proceeding. . . ." Transit Casualty, supra, 659
F. Supp. at 1354; see also Concourse Beauty School, supra, 685
F. Supp. at 1318; Konkar Maritime Enterprises, S.A. v. Compagnie
Belge D'Affretement, 668 F. Supp. 267, 271-72 (S.D.N.Y. 1987);
Reichman v. Creative Real Estate Consultants, Inc., 476 F. Supp. 1276,
1285 (S.D.N.Y. 1979) ("the touchstone in considering
claims of arbitrator misconduct is `fairness'"). "In handling
evidence an arbitrator need not follow all the niceties
observed by the federal courts. He need only grant the parties
a fundamentally fair hearing." Bell Aerospace Company Division
of Textron, Inc. v. Local 516, 500 F.2d 921, 923 (2d Cir.
1974). The party moving to vacate an arbitration award bears
the burden of proof. See Andros Compania Maritima, S.A. v. Marc
Rich & Co., A.G., 579 F.2d 691, 700 (2d Cir. 1978); Concourse
Beauty School, supra, 685 F. Supp. at 1315.
In the instant case, plaintiff received a "fundamentally fair
hearing." See Bell Aerospace, supra, 500 F.2d at 923. First, as
noted above, it is plainly evident from the Award itself that
in making his decision the Arbitrator considered the
post-hearing documents submitted by plaintiff. The Award
explicitly refers to the "numerous payroll records" submitted
by plaintiff in support of his claims, Richter Aff., Exh. A at
2, and reflects a close review of those records in finding
plaintiff's claims for overtime work unsubstantiated,
with the exception of eighteen hours of such work. Richter
Aff., Exh. A at 3. Moreover, defendant Richter Properties has
provided a sworn affidavit of its president, Michael Richter,
stating that the Arbitrator told Park Briar's counsel that he
would consider the post-hearing documents. Richter Aff. ¶ 13.
Plaintiff has provided no persuasive evidence to the contrary.
Second, the Arbitrator's refusal to adjourn the hearing a
fourth time at plaintiff's request, in no way constituted
arbitrator misconduct. On the contrary, the Arbitrator's prior
willingness repeatedly to adjourn the hearing gave plaintiff
more than an adequate opportunity to present his evidence, in
both documentary and testimonial form. Plaintiff's own repeated
failure to bring to the hearings the documents purporting to
support his claim, cannot be permitted to serve as the basis
for requiring the Arbitrator to grant an endless series of
adjournments. Because the expeditious resolution of disputes is
a principal purpose for the use of arbitration, "[t]he granting
or denying of an adjournment falls within the broad discretion
of appointed arbitrators. . . . `[A]ssuming there exists a
reasonable basis for the arbitrators' considered decision not
to grant a postponement, the Court will be reluctant to
interfere with the award on these grounds.'" Storey v. Searle
Blatt Ltd., 685 F. Supp. 80, 82 (S.D.N.Y. 1988) (quoting
Fairchild & Co., Inc. v. Richmond, Fredericksburg and Potomac
Railroad Co., 516 F. Supp. 1305, 1313 (D.D.C. 1981)); see also
Concourse Beauty School, supra, 685 F. Supp. at 1318 (refusal to
adjourn hearing must amount to a denial of fundamental fairness
to warrant vacatur of an arbitration award); Dan River, Inc. v.
Cal-Togs, Inc., 451 F. Supp. 497, 503 (S.D.N.Y. 1978).
Here, where the Arbitrator permitted several prior
adjournments at plaintiff's request, plaintiff repeatedly
failed to appear at the scheduled hearings prepared to proceed,
and the Arbitrator considered plaintiff's untimely post-hearing
submissions, the Court cannot find that plaintiff has met his
burden of proving that he was denied a fair hearing or that the
Arbitrator's refusal to grant his request for a fourth
adjournment was an abuse of the Arbitrator's broad discretion.
See, e.g., Storey, supra, 685 F. Supp. at 82 (refusal to grant
third adjournment at respondent's request was not misconduct
warranting vacatur of arbitration award); Dan River, supra, 451
F. Supp. at 503 (refusal to grant adjournment of arbitration
hearing due to unavailability of party's chief witness did not
warrant vacatur of award, where witness had notice of hearing
and nevertheless made other commitments). Accordingly,
plaintiff's motion to vacate the Award is denied.
Plaintiff's motion to vacate the Award, pursuant to 9 U.S.C. § 10(c),
is denied. Plaintiff shall serve and file his papers
in opposition to the pending motion to dismiss no later than
February 25, 1991. Reply papers, if any, shall be served and
filed no later than March 11, 1991.
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