Opinion
13524N-13524NA Index No. 656772/19 Case No. 2020-02961 2020-03135
04-06-2021
In the Matter of Mark CAPUTO et al., Petitioners–Respondents, v. Robert STACK et al., Respondents–Appellants, Midwood Chayim Aruchim Dialysis Associates, Inc., et al., Respondents.
Law Offices of K.C. Okoli, P.C., New York (K.C. Okoli of counsel), for appellants. Arent Fox LLP, New York (David N. Wynn of counsel), for respondents.
Law Offices of K.C. Okoli, P.C., New York (K.C. Okoli of counsel), for appellants.
Arent Fox LLP, New York (David N. Wynn of counsel), for respondents.
Gische, J.P., Kapnick, Oing, Moulton, JJ.
Judgment, Supreme Court, New York County (Jennifer G. Schecter, J.), entered July 13, 2020, in favor of petitioner Clarence Waltrous, M.D. and against respondents Onyekachi Ifudu, M.D. and Chika Oguagha, M.D., and dismissing Dr. Ifudu's, Dr. Oguagha's, and respondents Robert Stack's, Brooklyn Dialysis LLC's, and Westbury Medical Group, P.C.'s (collectively, claimants) claims in the underlying arbitration, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 16, 2020, which granted the petition to confirm the arbitration award and denied claimants' cross petition to vacate the award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Claimants failed to preserve their objection to the untimeliness of the arbitrator's final award since they did not notify the arbitrator in writing of their objection prior to the delivery of the award to them ( CPLR 7507 ; see Matter of Saltzman [Wohl], 168 A.D.2d 210, 562 N.Y.S.2d 95 [1st Dept. 1990], lv denied 78 N.Y.2d 984, 575 N.Y.S.2d 270, 580 N.E.2d 756 [1991] ; Rosario v. Carrasquillo, 88 A.D.2d 874, 451 N.Y.S.2d 776 [1st Dept. 1982] ). We note that claimants did not dispute in Supreme Court, and do not dispute on appeal, petitioners' counsel's representations that the arbitrator told the parties before the close of the hearing that he would need more than 30 days to render his final award and that no party objected thereto. In any event, the accumulation of preaward interest during the arbitrator's delay in rendering his final award does not constitute prejudice warranting vacatur (cf. C.T. Holdings, Ltd. v. Schreiber Family Charitable Found., Inc., 154 A.D.3d 433, 433, 61 N.Y.S.3d 532 [1st Dept. 2017] ["The accumulation of postjudgment interest does not support a claim of laches"]).
It was within the arbitrator's province to determine whether to award preaward interest on Dr. Waltrous's unjust enrichment counterclaims against Dr. Ifudu and Dr. Oguagha ( Matter of Gruberg [Cortell Group], 143 A.D.2d 39, 531 N.Y.S.2d 557 [1st Dept. 1988] ). Claimant failed to identify any contractual provision that specifically prohibited the arbitrator from awarding preaward interest. In any event, the award for unjust enrichment was not for a contractual claim. Given that Dr. Waltrous demanded interest in his counterclaims, the arbitrator did not exceed his authority in making such an award (cf. Matter of West Side Lofts [Sentry Contr.], 300 A.D.2d 130, 130, 751 N.Y.S.2d 475 [1st Dept. 2002] ).
We decline to consider claimants' argument, raised for the first time on appeal, that the arbitrator's finding that Dr. Ifudu and Dr. Oguagha are personally liable to Dr. Waltrous for unjust enrichment was irrational, since it is not a purely legal issue apparent on the face of the record (see Botfeld v. Wong, 104 A.D.3d 433, 434, 961 N.Y.S.2d 77 [1st Dept. 2013] ; see DeBenedictis v. Malta, 140 A.D.3d 438, 33 N.Y.S.3d 232 [1st Dept. 2016] ).