Opinion
6076 Index 654921/16
03-22-2018
In re GRANET & ASSOCIATES, INC., Petitioner–Appellant, v. THOM FILICIA, INC., Respondent–Respondent.
Tuttle Yick LLP, New York (David G. Skillman of counsel), for appellant. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Michael Wynn of counsel), for respondent.
Tuttle Yick LLP, New York (David G. Skillman of counsel), for appellant.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Michael Wynn of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Kern, Singh, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about March 15, 2017, which denied the application of petitioner Granet & Associates, Inc. to confirm the arbitration award and dismissed the petition, unanimously reversed, on the facts and law, with costs, to confirm the portion of the award awarding the stipulated amount, including the arbitrator's modification, and the matter remitted to the arbitrator for determination of whether respondent Thom Filicia, Inc. (TFI) may deduct related expenses from fees due to Granet for royalties received after March 7, 2016.
TFI did not seek to vacate or modify the award on a ground specified in CPLR 7511, and therefore, the court was obliged to confirm the award under CPLR 7510 (the court "shall confirm an award ... unless the award is vacated or modified upon a ground specified in section 7511")(emphasis added). Accordingly, the IAS court should have confirmed so much of the arbitration award that awarded payment of the stipulated amount (see Matter of Bernstein Family Ltd. Partnership v. Sovereign Partners, L.P., 66 A.D.3d 1, 3, 883 N.Y.S.2d 201 [1st Dept. 2009] ).
The issue of whether TFI may deduct "related expenses" under the paragraph entitled "Confirmation" in the parties' licensing agreement is the subject of a new controversy arising from TFI's payments of fees to Granet from royalties that TFI received after March 7, 2016. Thus, the matter should be remitted to the arbitrator for a hearing and determination solely of that issue ( Matter of Board of Educ. of Amityville Union Free School Dist. v. Amityville Teacher's Assn., 62 A.D.3d 992, 993, 880 N.Y.S.2d 138 [2d Dept. 2009] ).
We have considered and rejected the parties' remaining arguments.