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IBK Enterprises, Inc. v. Onekey

February 16, 2010

IN THE MATTER OF IBK ENTERPRISES, INC., APPELLANT,
v.
ONEKEY, LLC, RESPONDENT.



Motion by the respondent for leave to reargue an appeal from a judgment of the Supreme Court, Kings County (Demarest, J.), dated May 16, 2008, which was determined by decision and order of this Court dated July 7, 2009, and cross motion by the appellant for leave to reargue the appeal or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J. P., JOSEPH COVELLO, ANITA R. FLORIO, THOMAS A. DICKERSON, JJ.

ON MOTION

(Index No. 7092/07)

DECISION & ORDER

Upon the papers filed in support of the motion and cross motion and the papers filed in opposition thereto, it is,

ORDERED that the appellant's cross motion is denied; and it is further,

ORDERED that the respondent's motion for leave to reargue is granted; and it is further,

ORDERED that, upon reargument, the decision and order of this Court dated July 7, 2009 (Matter of IBK Enterprises, Inc. v Onekey, LLC, 64 AD3d 596), is recalled and vacated, and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 75 to stay arbitration, the petitioner appeals from a judgment of the Supreme Court, Kings County (Demarest, J.), dated May 16, 2008, which, upon an order of the same court dated March 29, 2007, granting the motion of Onekey, LLC, for the imposition of a sanction pursuant to 22 NYCRR 130-1.1 to the extent of imposing a sanction upon the petitioner in the sum of $2,500, and upon an order of the same court dated May 13, 2008, granting the cross petition of Onekey, LLC, to confirm an arbitration award dated November 13, 2007, in favor of Onekey, LLC, in the sum of $573,989, denying its motion to vacate the arbitration award, and granting the application of Onekey, LLC, for the imposition of an additional sanction pursuant to 22 NYCRR 130-1.1 to the extent of imposing an additional sanction upon the petitioner in the sum of $1,500, is in favor of Onekey, LLC, and against it in the principal sum of $577,989.

ORDERED that the judgment is affirmed, with costs.

An arbitration award may be vacated only upon proof that the underlying dispute was not arbitrable, that a party's rights were prejudiced by fraud or partiality of the arbitrator, that the arbitrator exceeded a specifically enumerated limitation on his or her power (see CPLR 7511[b][1]; Matter of Matra Bldg. Corp. v Kucker, 2 AD3d 732), that the award is violative of a strong public policy, or that the award is totally irrational (see Matter of Wicks Constr. [Green], 295 AD2d 527). Absent such a showing, the arbitration award must be confirmed even if the court concludes that the arbitrator's interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law. Here, the petitioner failed to make such a showing.

Specifically, the arbitrator's disclosure that he had met a principal of the respondent, Onekey, LLC, several years prior to the hearing did not demonstrate partiality. An occasional association between an arbitrator and a party or witness will not warrant disqualification of the arbitrator on the ground of the appearance of bias or partiality (see Matter of Henry Quentzel Plumbing Supply Co., v Quentzel, 193 AD2d 678, citing Matter of Siegel [Lewis], 40 NY2d 687, 690; see also ...


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