In re the Arbitration between Gleason & Vee — 96 N.Y.2d 117

Majority

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[749 NE2d 724, 726 NYS2d 45]

In the Matter of the Arbitration between Joseph M. Gleason et al., Appellants, and Michael Vee, Ltd., et al., Respondents.

Argued March 28, 2001;

decided May 1, 2001

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POINTS OF COUNSEL

DeGraff, Foy, Holt-Harris & Kunz, L. L. P., Albany (Kelly L. Munkwitz and James H. Tully, Jr., of counsel), for appellants.

I. The retroactive application of this Court’s decision in Matter of Solkav was improper. (Matter of Solkav Solartechnik, GES. M.B.H. [Besicorp Group], 227 AD2d 94 , revd sub nom. Matter of Solkav Solartechnik, G.m.b.H. [Besicorp Group], 91 NY2d 482 ; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184 ; Ulster Sav. Bank v Watson, 168 AD2d 839 ; Chevron Oil Co. v Huson, 404 US 97 ; Matter of Local 435 of Retail Store Empls. Union [Heinrich Motors], 521 F Supp 418 ; Matter of D. M. C. Constr. Corp. v Nash Steel Corp., 70 AD2d 635 , 49 NY2d 1040 ; Matter of Probst [Midwest Mut. Ins. Co.], 39 AD2d 914 , 32 NY2d 634 ; LMWT Realty Corp. v Davis Agency, 85 NY2d 462 ; Matter of Estate of Dresner v State of New York, 242 AD2d 627 ; Brothers v Florence, 95 NY2d 290 .) II. Failure to pay a filing fee is a waivable defect. (Matter of Fry v Village of Tarrytown, 89 NY2d 714 ; Gelin v Lehman Coll., 254 AD2d 119 ; Perez v Paramount Communications, 92 NY2d 749 ; RCA Records v Wiener, 166 AD2d 221 ; McIntosh Bldrs. v Ball, 247 AD2d 103 ; Beer v Myers & Co., 159 AD2d 943 ; Matter of Gershel v Porr, 89 NY2d 327 ; Mandel v Waltco Truck Equip. Co., 243 AD2d 542 ; Otero v New York City Hous. Auth., 94 NY2d 800 ; Venditti v Town of Alden, 239 AD2d 910 .) III. Respondents waived any jurisdictional objections. (Matter of Fry v Village of Tarrytown, 89 NY2d 714 ; Domansky v Berkovitch, 251 AD2d 3 ; Morrison v Budget Rent A Car Sys., 230 AD2d 253 ; Venditti v Town of Alden, 239 AD2d 910 ; Matter of Solkav Solartechnik, G.m.b.H. [Besicorp Group], 91 NY2d 482 ; Matter of Gershel v Porr, 89 NY2d 327 ; Ferran v Benkowski, 260 AD2d 690 ; Matter of AHEPA 91 v Town of Lancaster, 258 AD2d 968 ; Mandel v Waltco Truck Equip. Co., 243 AD2d 542 .)

Bond, Schoeneck & King, L. L. P., Albany (Carl Rosenbloom and Mary Ellen Ladouceur of counsel), for respondents.

I. Petitioners’ failure to commence a special proceeding to confirm

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the arbitration award is a jurisdictional defect which cannot be waived. (Matter of Fry v Village of Tarrytown, 89 NY2d 714 ; Matter of Gershel v Porr, 89 NY2d 327 ; Matter of Solkav Solartechnik, G.m.b.H. [Besicorp Group], 91 NY2d 482 ; Mandel v Waltco Truck Equip. Co., 243 AD2d 542 , 91 NY2d 809 ; Lacks v Lacks, 41 NY2d 71 ; Robinson v Oceanic Steam Nav. Co., 112 NY 315 ; Matter of AHEPA 91 v Town of Lancaster, 258 AD2d 968 ; Otero v New York City Hous. Auth., 94 NY2d 800 ; Rybka v New York City Health & Hosps. Corp., 263 AD2d 403 ; Ruiz v New York City Hous. Auth., 216 AD2d 258 .) II. The decision and award of the arbitrator must be vacated. (Matter of Wand Elec. [Clinton County Highway Dept.], 245 AD2d 984 ; Matter of PPX Enters. [Scepter Records], 51 AD2d 321 ; Pavilion Cent. School Dist. v Pavilion Faculty Assn., 51 AD2d 119 ; Matter of Minskoff [Rhean Bldrs. Corp.], 282 App Div 918 ; Matter of Kalgren [Central Mut. Ins. Co.], 68 AD2d 549 ; Weinrauch v Kashkin, 64 AD2d 897 ; Matter of Peckerman v D. & D. Assocs., 165 AD2d 289 ; Clemens v Dean Witter Reynolds, 708 F Supp 62 ; Matter of Koch Oil [Transocean Gulf Oil Co.], 751 F2d 551 ; Orban Co. v Angeles Metal Sys., 573 F2d 739 .) III. Petitioners were not denied due process of law. (Matter of Solkav Solartechnik, G.m.b.H. [Besicorp Group], 91 NY2d 482 ; Matter of Schulz v State of New York, 81 NY2d 336 ; People v Two Wheel Corp., 71 NY2d 693 ; Matter of Rivera v Smith, 63 NY2d 501 ; Matter of Mossman [MVAIC], 19 AD2d 842 ; Matter of Linwood [Sherry], 16 Misc 2d 488 , 7 AD2d 757 , 5 NY2d 711 ; Matter of Fry v Village of Tarrytown, 89 NY2d 714 ; Matter of Gershel v Porr, 89 NY2d 327 ; Gager v White, 53 NY2d 475 ; Kelly v Long Is. Light. Co., 31 NY2d 25 .) IV. Subsequent amendments to CPLR 7502 should not be applied retroactively. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 ; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205 ; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443 ; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98 ; Tompkins v Hunter, 149 NY 117 ; Landgraf v USI Film Prods., 511 US 244 ; Matter of OnBank & Trust Co., 90 NY2d 725 .)

OPINION OF THE COURT

In Matter of Solkav Solartechnik, G.m.b.H. (Besicorp Group) ( 91 NY2d 482 ), we held that when a pre-arbitration special proceeding ends in a final judgment, a new proceeding must be commenced to confirm an arbitration award, and we invited

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the Legislature to amend CPLR 7502 (a) if it intended otherwise. The Legislature responded promptly with CPLR 7502 (a) (iii), which provides that: “Notwithstanding the entry of judgment, all subsequent applications shall be made by motion in the special proceeding or action in which the first application was made.” This appeal presents the issue of how to treat an application to confirm an arbitration award that was dismissed for failure to commence a new proceeding in the interval between Solartechnik and the amendment to CPLR 7502 (a). We conclude that the amendment should be applied retroactively and the order of the Appellate Division dismissing the petition reversed.

The underlying dispute arises from respondents’ 1994 sale of a Saratoga County restaurant to petitioners. In connection with the sale, respondents agreed not to engage in a competing restaurant business within five miles of their former place of business for a period of five years. The agreement also provided that all disputes arising out of the transaction would be resolved by arbitration and that the prevailing party would be entitled to attorneys’ fees. Approximately one year after the sale, respondents Esther and Michael Viggiani informed petitioners that they intended to accept employment at a nearby restaurant, the Lodge, and provided assurances that the business was dissimilar, in terms of menu, dress code and price, to their former enterprise. The parties, however, failed to agree on the applicability of the covenant not to compete and respondents began working at the Lodge.

In August 1995, petitioners commenced a special proceeding in Supreme Court seeking to enjoin respondents from further employment at the Lodge pending arbitration of their dispute. By order dated August 23, 1995, Supreme Court denied petitioners’ request for injunctive relief and the matter proceeded to arbitration. On April 13, 1998, after winning compensatory damages and attorneys’ fees at arbitration, petitioners moved in Supreme Court for an order confirming the arbitration award with moving papers bearing the same index number as that used in the 1995 proceeding for injunctive relief. On May 15, 1998, three days after Solartechnik, respondents cross-moved, under the same index number, for an order vacating the arbitration award.

In August 1998, respondents sent a letter to Supreme Court citing Solartechnik and requesting dismissal of the application to confirm the arbitration award. Supreme Court denied respondents’ request and confirmed the award. The Appellate

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Division reversed and dismissed the application in April 2000, prior to enactment of CPLR 7502 (a) (iii).^[1] We granted leave to appeal and now reverse.

In Solartechnik, we construed CPLR 7502 (a), in order to determine whether an application to confirm an arbitration award could be brought under the same index number as a pre-arbitration proceeding that resulted in a final judgment. Reading CPLR 7502 (a) to permit a confirmation application only within a pending proceeding or a pending action, we concluded that a new proceeding had to be commenced when a pre-arbitration proceeding ended with entry of final judgment because the pre-arbitration proceeding was no longer pending. We further noted that the Legislature might wish to amend CPLR 7502 (a) if it intended that all matters relating to a particular arbitration be treated as a single, ongoing proceeding.

Legislative reaction was swift. At the next session, the Assembly introduced a bill to amend CPLR 7502 (a) to require that all applications relating to an arbitration be brought within a single action or proceeding (1999 NY Assembly Bill A 5937). The Sponsor’s Memorandum noted that the original purpose of CPLR 7502 (a) was “to ensure that all applications concerning an arbitration [be] presented in the same case” and that the Solartechnik holding would “add[] costs and also present [ ] the opportunity to bring a second proceeding before a different judge, or even in a different county” (Mem of Assembly Member Mark S. Weprin, A 5937). In the words of the Sponsor, the “Court of Appeals recognizes this situation and has invited remedial legislation” (id.).

The bill passed both Houses of the Legislature but not before the inclusion of language that would have exempted certain automobile accident arbitrations from the “one proceeding” requirement (1999 NY Senate-Assembly Bill S 3071A, A 5937A). The Governor vetoed the bill, disapproving the special exemption. However, in his Veto Message the Governor noted his agreement “with the sponsors that by correcting this technical defect [identified in Solartechnik], the bill furthers the State’s policy of concentrating all arbitration [-] related applications in a single action or proceeding in order to promote judicial economy and prevent forum shopping” (Governor’s

* We may consider this previously unraised question of law as to the retroactivity of CPLR 7502 (a) (iii), which could not have been raised below as those proceedings predated the amendment (see, Matter of OnBank & Trust Co., 90 NY2d 725 ).

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Veto Mem No. 7, 1999 NY Legis Ann, at 394). In doing so, the Governor stressed that the bill “would clarify” what the statute intended all along — “that all applications to a court pertaining to an arbitration shall be made within the same action or proceeding” (id.; see also, Mem of Assembly Member Mark S. Weprin, A 5937, supra). A new bill, without the exemption, was passed and signed into law on August 16, 2000 (L 2000, ch 226, NY Senate-Assembly Bill S 6672-D, A 9631-D [enacted]). The amendment, enacted to “address the problems of [Solartechnik],” took immediate effect (see, Mem of Senator Dean G. Skelos, S 6672-D).

This amendment, making subsequent arbitration-related applications within a prior pre-arbitration proceeding not only permissible but also mandatory, came weeks after the Appellate Division dismissed petitioners’ application. Petitioners argue that the amendment should be applied retroactively. We agree.

In determining whether a statute should be given retroactive effect, we have recognized two axioms of statutory interpretation. Amendments are presumed to have prospective application unless the Legislature’s preference for retroactivity is explicitly stated or clearly indicated (see, People v Oliver, 1 NY2d 152 , 157). However, remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose (see, Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 ; Becker v Huss Co., 43 NY2d 527 , 540). Other factors in the retroactivity analysis include whether the Legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; whether the statute was designed to rewrite an unintended judicial interpretation; and whether the enactment itself reaffirms a legislative judgment about what the law in question should be (see e.g., Brothers v Florence, 95 NY2d 290 , 299; Matter of OnBank & Trust Co., 90 NY2d 725 , 730).

In amending CPLR 7502 (a), the Legislature did not state that it was to have retroactive effect. However, in two respects it conveyed a sense of immediacy: it acted swiftly after Solartechnik, and it directed that the amendment was to take effect immediately, thus evincing “a sense of urgency” (Brothers v Florence, supra, 95 NY2d, at 299 , citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 , 583). Additionally, the legislative history establishes that the purpose of the amendment was to clarify what the law was always meant to do and say: that all arbitration-related applications

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should be concentrated in a single proceeding or action, to promote judicial economy and prevent forum shopping. These factors together persuade us that the remedial purpose of the amendment should be effectuated through retroactive application (see, Matter of OnBank & Trust Co., supra, 90 NY2d, at 731 ).

Petitioners’ remaining arguments are without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division for consideration of issues raised but not determined on appeal to that court.

Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur; Judge Graffeo taking no part.

Order reversed, etc.

Cases cited

In re the Arbitration between Solkav Solartechnik, Ges. M.B.H. 227 AD2d 94 N.Y. App. Div. 1997-01-16 p. 118
In re the Arbitration between Solkav Solartechnik, G.m.b.H. & Besicorp Group Inc. 91 NY2d 482 N.Y. 1998-05-12 p. 118, p. 119
Gurnee v. Aetna Life & Casualty Co. 55 NY2d 184 N.Y. 1982-02-18 p. 118
Ulster Savings Bank v. Watson 168 AD2d 839 N.Y. App. Div. 1990-12-27 p. 118
Chevron Oil Co. v. Huson 404 US 97 SCOTUS 1971-12-06 p. 118
D. M. C. Construction Corp. v. A. Leo Nash Steel Corp. 49 NY2d 1040 N.Y. 1980-05-08 p. 118
In re the Arbitration between Probst & Midwest Mutual Insurance 39 AD2d 914 N.Y. App. Div. 1972-06-05 p. 118
In re the Arbitration between Probst & Midwest Mutual Insurance 32 NY2d 634 N.Y. 1973-03-14 p. 118
Lmwt Realty Corp. v. Davis Agency Inc. 85 NY2d 462 N.Y. 1995-04-27 p. 118
Brothers v. Florence 95 NY2d 290 N.Y. 2000-10-19 at 299 p. 118, p. 122
Fry v. Village of Tarrytown 89 NY2d 714 N.Y. 1997-03-27 p. 118, p. 119
Perez v. Paramount Communications, Inc. 92 NY2d 749 N.Y. 1999-02-18 p. 118
McIntosh Builders, Inc. v. Ball 247 AD2d 103 N.Y. App. Div. 1998-10-22 p. 118
Beer v. F. W. Myers & Co. 159 AD2d 943 N.Y. App. Div. 1990-03-16 p. 118
Gershel v. Porr 89 NY2d 327 N.Y. 1996-12-19 p. 118, p. 119
Otero v. New York City Housing Authority 94 NY2d 800 N.Y. 1999-11-18 p. 118, p. 119
Domansky v. Berkovitch 251 AD2d 3 N.Y. App. Div. 1998-06-02 p. 118
Morrison v. Budget Rent A Car Systems, Inc. 230 AD2d 253 N.Y. App. Div. 1997-04-28 p. 118
Ferran v. Benkowski 260 AD2d 690 N.Y. App. Div. 1999-04-01 p. 118
Robinson v. Oceanic Steam Navigation Co. 112 NY 315 N.Y. 1889-01-29 p. 119
Rybka v. New York City Health & Hospitals Corp. 263 AD2d 403 N.Y. App. Div. 1999-07-22 p. 119
Ruiz v. New York City Housing Authority 216 AD2d 258 N.Y. App. Div. 1995-06-29 p. 119
In re the Arbitration between Wand Electric, Inc. & Clinton County Highway Department 245 AD2d 984 N.Y. App. Div. 1997-12-31 p. 119
In re the Arbitration between PPX Enterprises, Inc. & Scepter Records, Inc. 51 AD2d 321 N.Y. App. Div. 1976-03-23 p. 119
Pavilion Central School District v. Pavilion Faculty Ass'n 51 AD2d 119 N.Y. App. Div. 1976-02-24 p. 119
In re the Arbitration Between Kalgren & Central Mutual Insurance 68 AD2d 549 N.Y. App. Div. 1979-06-26 p. 119
Peckerman v. D & D Associates 165 AD2d 289 N.Y. App. Div. 1991-03-19 p. 119
Schulz v. State 81 NY2d 336 N.Y. 1993-05-11 p. 119
People v. Two Wheel Corp. 71 NY2d 693 N.Y. 1988-04-28 p. 119
Rivera v. Smith 63 NY2d 501 N.Y. 1984-11-27 p. 119
In re the Arbitration between Linwood & Sherry 16 Misc 2d 488 N.Y. Sup. Ct. 1958-09-09 p. 119
Gager v. White 53 NY2d 475 N.Y. 1981-07-07 p. 119
Kelly v. Long Island Lighting Co. 31 NY2d 25 N.Y. 1972-06-08 p. 119
Majewski v. Broadalbin-Perth Central School District 91 NY2d 577 N.Y. 1998-05-12 at 583 p. 119, p. 122
Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc. 15 NY2d 443 N.Y. 1965-05-27 p. 119
Raritan Development Corp. v. Silva 91 NY2d 98 N.Y. 1997-10-28 p. 119
Tompkins v. Hunter 149 NY 117 N.Y. 1896-04-07 p. 119
Landgraf v. USI Film Products 511 US 244 SCOTUS 1994-04-26 p. 119
In re OnBank & Trust Co. 90 NY2d 725 N.Y. 1997-11-25 at 730 p. 119, p. 122
People v. Oliver 1 NY2d 152 N.Y. 1956-04-26 at 157 p. 122
Becker v. Huss Co. 43 NY2d 527 N.Y. 1978-02-09 at 540 p. 122