In re the Arbitration between Excelsior 57th Corp. & Kern

Majority

p. 209

In the Matter of the Arbitration between Excelsior 57th Corp., Respondent, and Ralph W. Kern et al., Appellants.

[724 NYS2d 302]

—Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered January 8, 2001, vacating so much of an arbitration award as awarded pre-award interest, unanimously affirmed, without costs.

The arbitrators exceeded their authority in awarding preaward interest on the back rent they found due, since the parties’ narrow arbitration clause provided for arbitration of only specifically mentioned issues of fact, the mentioned issue underlying the instant arbitration being the value of the land for the purpose of fixing the rent, and the parties did not otherwise agree to submit the issue of interest to the arbitrators (see, Matter of Trump [Refco Props.], 194 AD2d 70 , 74, lv

p. 210

denied 83 NY2d 754 ). Nor should such an award of interest be made as a matter of judicial discretion under CPLR 5001, where the arbitrators’ valuation was closer to respondent lessee’s than to appellants lessors’ by a very considerable amount, and where much unnecessary litigation and delay can be attributed to appellants (see, Matter of Kern [303 E. 57th St. Corp.], 204 AD2d 152 , lv denied 84 NY2d 810 ; Matter of Excelsior 57th Corp. [Kern], 218 AD2d 528 ). Concur — Rosenberger, J. P., Nardelli, Tom, Andrias and Ellerin, JJ.

Cases cited

In re the Arbitration between Trump & Refco Properties, Inc. 194 AD2d 70 N.Y. App. Div. 1993-12-16 at 74 p. 209
In re Arbitration between Kern & 303 East 57th Street Corp. 204 AD2d 152 N.Y. App. Div. 1994-05-12 p. 210
In re the Arbitration between Excelsior 57th Corp. & Kern 218 AD2d 528 N.Y. App. Div. 1995-08-10 p. 210