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In re Kingdon Capital 652682/12e Management, LLC

Supreme Court of New York, First Department

October 31, 2013

In re Kingdon Capital 652682/12e Management, LLC, Petitioner-Respondent,
v.
Marjorie Kaufman, Respondent-Appellant.

Greenspan & Greenspan, White Plains (Leon J. Greenspan of counsel), for appellant.

Wilkie Farr & Gallagher LLP, New York (Michael S. Schachter of counsel), for respondent.

Mazzarelli, J.P., Renwick, DeGrasse, Feinman, Gische, JJ.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered April 5, 2013, confirming an arbitration award dated June 28, 2012, and awarding respondent the sum and prejudgment interest set by the award, plus costs and disbursements, unanimously affirmed, without costs.

Respondent failed to show that the arbitrators exceeded their power (see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332, 336 [2005]; CPLR 7511[b]; 9 USC § 10[a][1]-[4]) or manifestly disregarded the law (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 N.Y.3d 471, 480-481, cert dismissed 548 U.S. 940 [2006]; Cantor Fitzgerald Sec. v Refco Sec., LLC, 83 A.D.3d 592 [1st Dept 2011]).

Respondent lacks any basis for invoking the protections of Labor Law § 198(1-a), since there is no indication in the record before us that she timely asserted any Labor Law claim before the arbitrators (see Matter of Obot [New York State Dept. of Correctional Servs.], 89 N.Y.2d 883 [1996]). In any event, the arbitrators properly declined to award respondent incentive compensation beyond her termination date, particularly since they determined that her compensation agreement had been orally modified in 2009 without mention of continuing incentive compensation beyond termination (see Mackie v La Salle Indus., 92 A.D.2d 821 [1st Dept], appeal dismissed 60 N.Y.2d 612 [1983]).

There is no basis for disturbing the arbitrators' decision not to award respondent attorneys' fees or other costs pursuant to Labor Law § 198(1-a). Nor is there any basis for modifying the rate of prejudgment interest awarded (see Matter of Gruberg [Cortell Group], 143 A.D.2d 39 [1st Dept 1988]; Matter of Rothermel [Fidelity & Guar. Ins. Underwriters], 280 A.D.2d 862 [3d Dept 2001]).

We have considered appellant's remaining arguments and find them without merit.


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