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September 17, 2015

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter


A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter
D'Ropshitz v Schwartz, 2015 NY Slip Op 06814, Appellate Division, Second Department

An arbitration award dated August 20, 2012was issued by the arbitration panel. Schwartz then alerted the arbitration panel that the August 20, 2012, award had left an issue unresolved and met with the panel. This resulted in the arbitration panel issuing an award dated July 2, 2013.

When D’Ropshitz brought a CPLR Article 75 action to confirm the panel’s July 2, 2013 award Schwartz objected, contending that after issuing its arbitration award dated August 20, 2012 the arbitration panel did not have jurisdiction to issue the arbitration award dated July 2, 2013. Supreme Court, Kings Countyconfirmed the July 2, 2013 award, [in part] and Schwartz appealed the Supreme Court’s determination.

The Appellate Division affirmed the Supreme Court’s confirmation of the award [in part], explaining that Schwartz waived any argument that the arbitration panel exceeded its authority or was without jurisdiction with respect to its issuing the July 2, 2013 award by alerting the arbitration panel that the August 20, 2012, award had left an issue unresolved and then meeting with the panel, during which Schwartz suggested "that the panel members visit the subject site so that they might have a better understanding of the issue.”

Also, as the Court of Appeals held in United Federation of Teachers, Local 2 v Board of Education of the City of New York, 1 NY3d 72, "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_06814.htm

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