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In re Application of Dukhon

Suprem Courtt, New York County

July 25, 2013

In the Matter of the Application of VITALY DUKHON, Petitioner,
v.
DOW KIM a/k/a DO WOO KIM, Respondent Index No. 651776/2013

Unpublished Opinion

RECEIVED NYSCEF: 07/29/2013

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered

Notice of Motion and Affidavits Annexed.................................... 1

Affirmation in Opposition.......................................................... 2

Replying Affidavits...................................................................... 3

Exhibits.......................................:.............................................. 4

Petitioner commenced the instant proceeding seeking an order pursuant to CPLR § 7510 confirming the arbitration award rendered on May 6, 2013 (the "Award") and directing that judgment be entered thereon. Respondent cross-moves for an order pursuant to CPLR § 7511 (c) modifying the Award to eliminate the portion that awards petitioner $1.7 million based on a theory of promissory estoppel. For the reasons set forth below, petitioner's motion is granted and respondent's cross-motion is denied.

The relevant facts and procedural history are as follows. Petitioner Vitaly Dukhon ("Dukhon") and respondent Dow Kim ("Kim") were limited partners in Diamond Lake Investment Group, L.P. and members of Diamond Lake GP, LLC (collectively "Diamond Lake").Section 9.06 of "The Limited Liability Company Agreement of Diamond Lake GP LLC (the "LLC Agreement"), " provided that for:

any controversy or dispute arising out of... the actions or omissions of any Member in connection with the business of the Company, each of the parties consents to submit any such controversy or dispute to be finally resolved by arbitration in accordance with the CPR Institute for Dispute Resolution Rules.

Similarly, Section 9.06 of the "First Amended and Restated Limited Partnership Agreement of Diamond Lake Investment Group LP (the "LP Agreement")" provided that for:

any controversy or dispute arising out of... the actions or omissions of any Partner in connection with the business of the Partnership, each of the parties consents to submit any such controversy or dispute to be finally resolved by arbitration in ...

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