Opinion
No. 14531/13.
08-19-2014
In the Matter of the Arbitration between Edward PINKESZ A/k/a Chaim Yosef Pinkesz, Petitioner and Joel WERTZBERGER, Respondent.
Victor Worms, Attorney for Petitioner. Herrick, Feinstein, Attorney for Respondent.
Victor Worms, Attorney for Petitioner.
Herrick, Feinstein, Attorney for Respondent.
Opinion
YVONNE LEWIS, J.
Edward Pinkesz a/k/a Chaim Yosef Pinkesz (petitioner) seeks to confirm a Beth Din decision dated July 22, 2013. Joel Wertzberger (respondent) cross-moves to vacate that decision.
A Beth Din is “a religious tribunal that adjudicates disputes according to Jewish law and custom” (Matter of Meisels v. Uhr, 79 N.Y.2d 526, 531 [1992] ).
Background
(1)
The parties herein were engaged in business surrounding life settlement transactions, in which a person or entity purchases and maintains an existing life insurance policy as an investment, paying the original holder a lump sum. In early 2011, Wertzberger and Anthony Pinkesz, petitioner's brother, jointly purchased life insurance policies, each with a face value of $5 million, covering Jacob Pinkesz (the Jacob Policy) and Julius Pinkesz (the Julius Policy) from a Philadelphia synagogue. Non-parties Chaim Hager (Hager) and Hershey Deutch also apparently acted as investors in purchasing at least the Jacob Policy.
Pinkesz organized the joint purchase of the policies by Anthony Pinkesz and Wertzberger, who had initially been bidding against each other. In return for this organization, Wertzberger agreed to pay Pinkesz a brokerage fee, the amount of which partially underlies the instant dispute, but which generally took the form of a $750,000 loan and a payment of $325,000 upon the Jacob Policy's maturation, to be reduced by $100,000 per year if maturation did not occur within three years. A loan agreement provided that, if Wertzberger failed to timely deliver the loan money, the payment at maturation would be $750,000, reduced by $100,000 yearly after three years.
A dispute developed between Pinkesz and Wertzberger, which they agreed to resolve before the Rabbinical Court Orech Mishor of Boro Park (the Beth Din). An arbitration agreement, dated April 12, 2011, (the Arbitration Agreement) named Rabbi Israel M. Kenig (Rabbi Kenig) as the sole arbitrator and stated that it applied to “the matter of all disputes between us in the matter of 5M. MM Jacob Julius Pinkes, and all disputes branching out directly or indirectly from the aforementioned matter.” It stated that the presiding rabbis could “issue interim rulings” and provided that proceedings could occur before only one party if the other party evaded appearing.
The Beth Din issued a ruling, dated May 5, 2011, (the 2011 Decision) which stated, “With regards to the matter of controversies between Mr. Chaim Joseph Pinkes (the plaintiff), and between Mr. Joel Wertzberger (the defendant); the parties accepted our opinion through an Agav Suder binding procedure by signing an Arbitration Agreement; we hereby issue the following. “1. Mr. Joel Wertzberger shall release to Mr. Chaim Joseph Pinkes the amount of $425,000.00 in addition to the amount of $325,000.00 that he has already released, in form of a loan, and this in a most effective manner. 2. Mr. Joel Wertzberger shall release to Mr. Chaim Joseph Pinkes the amount of $37,500.00, also in a most effective manner. The above is in exchange of the amount of $750,000.00 that Mr. Joel Wertzberger owes Mr. Chaim Joseph Pinkes towards the commission he is owed; therefore we set the time of the loan to within one month from the date of the signature below, punctually.” Rabbi Kenig signed the 2011 Ruling as the Beth Din's chief.
In June 2011, Anthony Pinkesz sold his interest in the Jacob Policy to Wertzberger for $1.5 million. Wertzberger then transferred the policy to an entity called Pinkesz Mutual Holdings LLC, the members of which were Shirley Elfie Life Trust, with a 50% share, Hager, with a 25% share, and Better Bottles, LLC, with a 25% share . Wertzberger notes that he is a member of Better Bottles, LLC. Jacob Pinkesz died during the summer of 2012.
Pinkesz Mutual Holdings LLC and Shirley Elfie Life Trust have commenced a separate action, also before this court, against petitioner, Wertzberger, Anthony Pinkesz, Rabbi Kenig and the Beth Din, seeking to recover the $5–million Jacob–Policy death benefit (see Shirley Elfie Life Trust v. Pinkesz, Sup Ct, Kings County, Lewis, J., index No. 507958/13).
Rabbi Kenig called Wertzberger back to the Beth Din in July 2013. The parties met before Rabbi Kenig on July 10, 2013, but both the circumstances and substance of this meeting are disputed as discussed in detail below. Rabbi Kenig issued another ruling, dated July 22, 2013, (the 2013 Decision) which stated, “In regard to the dispute between the two parties namely Mr. Chaim Yosef Pinkesz (The Plaintiff) and Mr. Joel Wertzberger the [sic] (The Respondent) on the policy of the deceased Mr. Jacob Joel Pinkesz peace be on him, and both sides signed by us Arbitration Documents at the beginning of the dispute in the month of Nisan 5771. (April, 2011)” “Subsequent to a second rabbinical court hearing on July 10, 2013 and we received new information in the matter, it came to us that Mr. Joel Wertzberger (the respondent) must pay Mr. Chaim Yosef Pinkesz (the plaintiff) the amount of three million seven hundred and fifty thousand dollars $3,750,000.00 immediately and without delay.”
(2)
Pinkesz commenced the instant proceeding by filing a petition to confirm the 2013 Decision on August 20, 2013. Pinkesz notes that, after “new evidence became available” following the 2011 Decision, he requested a second hearing, which resulted in the 2013 Decision. He recounts that the Beth Din served a copy of the 2013 Decision on Wertzberger by certified mail. Pinkesz also included copies of the Arbitration Agreement, the 2011 Decision, the 2013 Decision and certified translations of each.
(3)
Wertzberger now cross-moves for an order, pursuant to CPLR 7511, vacating the 2013 Decision. He first argues that Rabbi Kenig exceeded the scope of his arbitral powers in issuing the 2013 Decision, as his authority as an arbitrator concluded with the issuance of 2011 Decision. The doctrine of functus officio, respondent contends, bars reopening a concluded dispute or modifying a final arbitration decision except in specific circumstances where CPLR 7509 permits modification. Wertzberger asserts that a decision may be considered final despite terms of an arbitration agreement that permit subsequent amendment or addition. Rabbi Kenig further exceeded the Arbitration Agreement's scope, Wertzberger argues, as the 2013 Decision purports to award Pinkesz monies that belong to Pinkesz Mutual Holdings LLC , which was not party to the arbitration.
This entity's alleged interest in the Jacob Policy is more fully addressed in the opinion concurrently issued in the parallel action, Shirley Elfie Life Trust v. Pinkesz (Sup Ct, Kings County, Lewis, J., index No. 507958/13).
Wertzberger argues that he suffered prejudice from various violations of arbitral procedure required by CPLR article 75. He alleges that Rabbi Kenig had represented that the July 2013 hearing would concern Wertzberger's purported failure to comply with the 2011 Decision, but then addressed, instead, questions as to whether Pinkesz was, in fact, a partner in interest in the Jacob Policy. Rabbi Kenig, Wertzberger claims, then refused to grant an adjournment to allow Wertzberger to produce evidence or witnesses pertinent to this issue, of which Wertzberger asserts he had no prior notification, whereas Anthony Pinkesz was present to testify on Pinkesz's behalf. Wertzberger alleges that Rabbi Kenig refused to permit Wertzberger to submit evidence concerning the partnership issue until Wertzberger had placed $425,000 in escrow to potentially satisfy the 2011 Decision. Rabbi Kenig, Wertzberger contends, also refused his request to be represented at the hearing by a to‘an, or religious representative, who was also a licensed attorney.
Wertzberger also contends that he did not receive proper notice of the 2013 hearing, getting only a letter, by regular mail, four days before the hearing date. Neither that letter, nor text messages Wertzberger exchanged with Rabbi Kenig, Wertzberger claims, explained the reason for this second hearing and represented only that it concerned compliance with the 2011 Decision. He also argues that resolution by a Beth Din requires the decision of three rabbis, whereas both hearings were before only Rabbi Kenig and he alone issued the 2013 Decision.
Wertzberger characterizes the 2013 Decision as irrational, as the profit realized from the Jacob Policy totaled only $2.2 million, and, thus, even were Pinkesz a partner in that policy (which Wertzberger adamantly denies), he could never be entitled to $3.75 million. Finally, Wertzberger argues that the 2013 Decision requires vacatur because Rabbi Kenig demonstrated bias against Wertzberger and engaged in ex parte communications with Pinkesz. Wertzberger contends that he did not know, until after the 2013 Decision's issuance, that Pinkesz's father is president of the synagogue where Rabbi Kenig officiates and that Rabbi Kenig and Pinkesz had a prior relationship. Wertzberger further claims that Rabbi Kenig told other community members that Wertzberger is a thief and an atheist, who deserves to fail.
Wertzberger supports his cross motion and opposition to the petition with the affidavit of Abraham Leifer (Leifer). Leifer states that, during the summer of 2013, he had a conversation with Rabbi Kenig in which the rabbi said “(a) Joel [respondent] steals money from people;' and (b) You know that Joel is an atheist who doesn't believe in G-d and it would be a mitzvah (a word meaning something similar to “good deed”) to bury him.' “ Leifer recounts that he had another interaction with Rabbi Kenig, around Labor Day 2013, during which he said, “(a) Joel Wertzberger is an atheist and we have to show him and show the world that he should get what is coming to him;' and (b) It's a mitzvah (a word meaning a word meaning [sic] something similar to “good deed”) to not let him [Joel Wertzberger] succeed' “ (second alteration in original; second opening internal quotation mark omitted in original). Leifer states that he had other conversations with Rabbi Kenig in which the rabbi made similar statements.
Wertzberger also supports his cross motion and opposition with the affidavit of Moshe Follman (Follman), who states that he was walking down the street in May 2013 and overheard a discussion in which a man said “Joel Wertzberger is doing evil things to the people in the community by buying the mortgages' and it would be a mitzvah (a word meaning something similar to “good deed”) to take Joel down because he is doing these things and kicking these people out of their homes.' “ Follman explains that he later learned that the speaker was Rabbi Kenig.
(4)
Pinkesz, in reply and opposition, argues that the 2013 Decision must be confirmed, as Wertzberger participated in the July 2013 hearing, was not prevented from presenting evidence and never requested an adjournment to obtain an attorney. He asserts that the parties' dispute concerned Pinkesz's interest in both the Jacob Policy and the Julius Policy and that, as both policies had face values of $5 million, a $3.75–million award to Pinkesz was not irrational. Pinkesz contends that he had a 50% interest in Wertzberger's half-shares of both the Jacob Policy and the Julius Policy, as well as a 50% interest in Anthony Pinkesz's half-share of the Jacob Policy.
Pinkesz contends that “[t]here is no dispute that my partnership interests in the Jacob Policy and the Julius Policy as well as my commission for brokering the Jacob Policy and the Julius Policy were the subject of the arbitration,” stressing that the Arbitration Agreement covers “the matter of all disputes between [petitioner and respondent] in the matter of 5M. MM Jacob Julius Pinkes, and all disputes branching out directly or indirectly from the aforementioned matter.” Pinkesz argues that the 2011 Decision was merely an interim ruling, as explicitly permitted by the Arbitration Agreement, and that Rabbi Kenig decided to withhold a decision on Pinkesz's partnership interests “until at least one of the policies matured.” He thus characterizes Pinkesz's argument that the 2011 Decision constituted a final award as disingenuous.
Pinkesz further contends that the parties mutually selected Rabbi Kenig as the only arbitrator for their dispute and that Wertzberger must have known of the connection between Pinkesz's family and Rabbi Kenig, as Wertzberger attended yeshiva with Rabbi Kenig and the yeshiva was associated with the synagogue of which Pinkesz's father is president. Pinkesz stresses that Wertzberger attended a banquet to honor Pinkesz's father's 50 years as synagogue president.
Pinkesz acknowledges Anthony Pinkesz's sale of his interest in the Jacob Policy to Wertzberger, but asserts that “[t]he sale by Anthony of his 50% interest in the Jacob Policy did not affect my 50% interest in that policy.” He further contends that the sale agreement that Anthony Pinkesz wrote specifically reserved Pinkesz's interest, stating, in part, “On the 5 million dollar policy that I have on my name that [respondent] is a 50% owner I hereby sell my 50% ownership which makes [respondent] 100% owner. [Respondent] doesn't have to pay anybody else only my brother what Din Torah Paskened. I am not representing anything about [the] policy or guaranteeing it other than I own 50% free and clear” (final alteration in original).Pinkesz contends that Anthony Pinkesz thus sold his share in the Jacob Policy to Wertzberger with the understanding that Wertzberger's share “would be subject to the Din Torah Paskened' or a final arbitration award from the Beth Din.” When Jacob Pinkesz died, petitioner contends that Wertzberger collected the $5 million policy and “did not account to me for my 50% partnership interest in the Jacob Policy which would have amount [sic] to $2,500,000.00.”
Pinkesz thus alleges that the July 2013 hearing occurred specifically to determine his partnership interests in the Jacob Policy and the Julius Policy. He asserts that Wertzberger appeared without an attorney, that he fully participated in the hearing and that Rabbi Kenig stressed that the hearing concerned Pinkesz's partnership interests. Wertzberger, Pinkesz contends, never “indicated that he needed an adjournment to obtain an attorney or to obtain any evidence or witness which he did not have present.” Pinkesz argues, in any case, that Wertzberger requested representation by a to‘an and that the right to counsel, guaranteed by CPLR 7506(d), does not apply to religious representatives. He additionally contends that appearing at and participating in a hearing waives any right to assert procedural defects, including the denial of representation, as a basis for vacatur.
Pinkesz contends that Wertzberger presented testimony and evidence countering Pinkesz's arguments, but that Rabbi Kenig concluded that Pinkesz was a 50% partner in Pinkesz's full interest in the $5–million Jacob Policy, thus entitling Pinkesz to $2.5 million, and also a 50% partner in Pinkesz's half interest in the $5–million Julius policy, thus entitling Pinkesz to an additional $1 .25 million. Pinkesz stresses that a court may not review the merits of an arbitration and that factual or legal errors by an arbitrator do not justify vacatur. Similarly, Pinkesz urges, the 2013 Decision cannot be vacated as irrational since the finding of Pinkesz's partnership interests presents a plausible basis for the $3.75–million award. He argues that “the fact that [respondent] may have assigned or transferred part of his interest in one or both polices [sic] to another person or entity, does not negate the fact that [petitioner] was a 50% partner with [respondent] in [respondent's] share of the Jacob Policy and the Julius Policy and, therefore, there is a colorable basis for the award of the Beth Din.”
Pinkesz characterizes Wertzberger's allegation that Rabbi Kenig demanded immediate payment of $425,000 to Pinkesz before permitting Wertzberger to present evidence as a “complete fabrication.” Pinkesz argues that requiring Wertzberger to place $425,000 in escrow “would have been inconsistent with the findings of Rabbi Kenig that I was a 50% partner with [respondent] in his share of both the Jacob Policy and the Julius Policy and that I was entitled to a payment of $3,750,000.00 representing my 50% partnership interests in [respondent's] share in both policies.” He characterizes as disingenuous Wertzberger's allegations of bias by Rabbi Kenig and claims that Wertzberger requested Rabbi Kenig as an arbitrator in a separate, “relatively recent arbitration.” Pinkesz claims that Wertzberger's claim of ex parte communications are baseless and “simply not true.”
Finally, Pinkesz characterizes the Leifer and Follman affidavits as hearsay. Follman, he argues, fails to identify other people involved in the discussion he purportedly overheard and how he learned, after the fact, that the speaker he quoted was Rabbi Kenig. He contends that the speaker could have been referring to any of the other Joel Wertzbergers in Williamsburg and Borough Park. Pinkesz additionally claims that Leifer admitted to Pinkesz that he did not read his own affidavit, that nothing therein is true and that he signed it because of a personal vendetta against Rabbi Kenig. Pinkesz asserts that both Leifer and Follman have business relationships with Wertzberger and have an interest in supporting him. He thus argues that Wertzberger fails to demonstrate any bias on the part of Rabbi Kenig with clear and convincing evidence.
(5)
Wertzberger, in reply, argues that Pinkesz made a judicial admission, in his petition, that the July 2013 hearing was a modification of the 2011 Decision based on new evidence and did not characterize the 2011 Decision as an interim ruling. He contends that, regardless of the scope of disputes that the Arbitration Agreement could have applied to, no dispute as to partnership interests was submitted at the 2011 hearing and the only dispute then submitted concerned Pinkesz's brokerage commission. He urges that an arbitrator's power is limited to the dispute submitted by the parties and that arbitrators generally cannot grant sua sponte relief. Wertzberger also stresses that nothing on the face of the 2011 Decision indicates that it was only an interim ruling. Accordingly, Wertzberger argues that Rabbi Kenig exceeded the scope of his power by issuing a second decision concerning Pinkesz's purported partnership interests.
Wertzberger asserts that, even at the July 2013 hearing, Pinkesz claimed only that he was a 25% partner in the Jacob Policy and claimed no interest in the Julius Policy. Wertzberger emphasizes that he did not know Pinkesz even sought to claim an interest in the Julius Policy until Pinkesz submitted his opposition and reply. Wertzberger urges that no one made any mention of the Julius Policy at the July 2013 hearing and characterizes Pinkesz's raising of the Julius Policy now as “a transparent attempt to craft an after-the-fact justification for what is clearly an irrational and otherwise legally deficient award.” Furthermore, Wertzberger stresses that Julius Pinkesz is still alive and, thus, the Julius Policy has not yet yielded a death benefit.
Wertzberger again argues that Rabbi Kenig exceeded his arbitral authority by issuing an award based on funds owed to a non-party, as the Jacob Policy was owned by Pinkesz Mutual Holdings LLC at maturation. He urges that “[t]here is no possible way to confirm the [2013] Award without infringing on the rights of PMH and its members.” He characterizes Pinkesz's assertion that Anthony Pinkesz's sale of his share to Wertzberger had no effect on Pinkesz's interest as nonsensical and contradicted by the sale document. Wertzberger urges that the reservation that he must pay Pinkesz “what Din Torah Paskened” refers to the payment required by the 2011 Decision, which had already occurred, as “paskened” is in the past tense.
Wertzberger reiterates that he was prejudiced by procedural defects of the July 2013 hearing, to which he objected at the time. He stresses that his notice of that hearing was untimely and argues that the letter indicated that the July 2013 hearing would concern only Wertzberger's purported failure to comply with the 2011 Decision, not any alleged partnership dispute between the parties. Wertzberger submits a copy of the letter he received as notice of the July 2013 hearing, which states, in relevant part, “In regards to the ruling that was issued by us on the first day of the month of Iyar year 771, about what you were ordered to give to Mr. Chaim Joseph Pinkusz, said Mr. Chaim Joseph came before us [with a complaint] that you did not comply with the ruling. Therefore, you are invited to appear before us in regards to this issue ...” (alteration in original).
Wertzberger thus argues that, not only was his notice of the July 2013 hearing insufficient, but it misled him as to the subject of the dispute to be resolved, i.e., his compliance with the 2011 Decision, not Pinkesz's purported interests in the policies.
Wertzberger again claims that Rabbi Kenig repeatedly refused to consider, or allow Wertzberger to retrieve, evidence relevant to the partnership issue, and he urges that a purported transcript of the July 2013 hearing verifies this. Wertzberger also contends that the to‘an that he sought to bring to the July 2013 hearing was a New York-licensed attorney, covered by Wertzberger's right to counsel. Furthermore, he argues that the right to representation by counsel is unwaivable and that the case Pinkesz cited is distinguishable as the party therein appeared with counsel, but subsequently fired its attorney and appeared unrepresented.
The 2013 Decision must be vacated as irrational, Wertzberger contends, as Rabbi Kenig premised it on “little to no actual evidence,” creating no colorable justification for the $3.75–million award. Wertzberger again stresses that the profits realized from the Jacob Policy totaled only $2.2 million and that no death benefit has yet resulted from the Julius Policy.
Finally, Wertzberger again stresses that the 2013 Decision must be vacated due to Rabbi Kenig's bias. He asserts that only ex parte communications could explain the sudden scheduling of a second hearing and Rabbi Kenig's purported recollections of Pinkesz's interest in the Jacob Policy. Wertzberger contends that he truly was not aware that Pinkesz's father is president of the synagogue where Rabbi Kenig officiates, as the yeshiva he attended and that synagogue are “run entirely separately.” He also represents that he attended, as usual, an annual charitable banquet without realizing that Pinkesz's father was being honored. Wertzberger characterizes Pinkesz's purported conversation with Leifer as hearsay and emphasizes Leifer's confirmation of his prior affidavit.
Wertzberger supports his reply with the affirmation of Hager, who recounts that he was Wertzberger's “full partner” in the Jacob and Julius Policies and that Pinkesz “was not a partner in Jacob Policy, and was acting solely as a broker in connection with the policy.” Hager explains that he was present at the first day of the 2011 hearing, although he refused to participate. He states that Rabbi Kenig represented that he would take evidence, but would consult with the other two Beth Din rabbis before issuing a ruling. Hager also asserts that, to the best of his recollection, Pinkesz raised no claim in 2011 that he was a partner in either the Jacob or the Julius Policy and that “the only dispute that was presented to Rabbi Kenig at the first arbitration hearing was the dispute over the amount of [petitioner's] brokerage commission.” He recounts that Pinkesz claimed no interest in either policy and, instead, only demanded an increase in his commission.
Wertzberger also supports his reply with another affidavit by Leifer. Leifer flatly rejects that he had any conversation with Pinkesz as Pinkesz claims in his opposition and reply, and he characterizes the substance of the purported conversation as “completely fabricated.” He asserts that he has no vendetta against Rabbi Kenig, that he had significant input in the drafting of his prior affidavit and that all statements therein are true. Contrary to Pinkesz's representation, Leifer recounts that he did have an interaction with Pinkesz in January 2014 during which Pinkesz yelled at and threatened him for supporting Wertzberger in the instant dispute. He states that Pinkesz has continued to make harassing or threatening remarks and also stresses that he has no business interest in Wertzberger's success in this proceeding.
Discussion
“Judicial review of an arbitrator's award is very limited” (Matter of Town of Babylon v. Carson, 111 A.D.3d 951, 953 [2013] [internal quotation marks omitted]; see also Matter of Aftor v. Geico Ins. Co., 110 A.D.3d 1062, 1064 [2013] ; Matter of Allstate Ins. Co. v. GEICO [Govt. Empls. Ins. Co.], 100 A.D.3d 878, 878 [2012] ), and an arbitrator need not observe substantive law or evidentiary rules in issuing a decision (Matter of Aftor, 110 A.D.3d at 1064, 974 N.Y.S.2d 95 ; Matter of Allstate Ins. Co., 100 A.D.3d at 878, 955 N.Y.S.2d 100 ; Matter of Susan D. Settenbrino, P.C. v. Barroga–Hayes, 89 A.D.3d 1094, 1095 [2011], lv dismissed in part, denied in part 18 N.Y.3d 954 [2012], cert denied sub nom. Settenbrino v. Barroga–Hayes, –––U.S. ––––, 133 S.Ct. 572 [2012] ). New York favors arbitration as a method of dispute resolution (Shah v. Monpat Constr., Inc., 65 A.D.3d 541, 543 [2009] ), but CPLR 7511(b)(1) permits vacating an arbitration award if, among other circumstances, the arbitrator “exceeded his power or so imperfectly executed it that a final determination and definite award upon the subject matter submitted was not made” or failed to observe procedures required by CPLR article 75. An arbitration award may be found to have exceeded the arbitrator's powers if it violated a strong public policy, was totally irrational or breached an explicit limitation on such power (Matter of Town of Babylon, 111 A.D.3d at 953, 976 N.Y.S.2d 501 ; Matter of Gansburg v. Blachman, 111 A.D.3d 935, 936 [2013] ; Matter of Aftor, 110 A.D.3d at 1064, 974 N.Y.S.2d 95 ; Matter of Westchester County Corr. Officers' Benevolent Assn. v. County of Westchester, 100 A.D.3d 644, 645 [2012] ).
Once an arbitrator has rendered an award pursuant to an applicable arbitration agreement, the arbitrator is generally deemed functus officio; which Black's Law Dictionary translates as “having performed his or her office” and as “without further authority or legal competence because the duties and functions of the original commission have been fully accomplished” (Black's Law Dictionary [9th ed 2009], functus officio ). The power to modify such award or otherwise bind the parties terminates upon its issurance (Matter of Hanover Ins. Co. v. American Intl. Underwriters Ins. Co., 266 A.D.2d 545, 545 [1999] ; Matter of Wolff & Munier [Diesel Constr. Co.], 41 A.D.2d 618, 618 [1973] ; Matter of Mole [Queens Ins. Co. of Am.], 14 A.D.2d 1, 2 [1961], citing Herbst v. Hagenaers, 137 N.Y. 290, 294 [1893] ; Matter of Curtis Lbr. Co. Inc. v. American Energy Care Inc., 27 Misc.3d 1217[A], 2010 N.Y. Slip Op 50781 [U], *4 [Sup Ct, Albany County 2010], affd as mod 81 A.D.3d 1225 [2011] ; see also Kalyanaram v. New York Inst. of Tech., 91 A.D.3d 532, 532 [2012] ). An arbitrator thus improperly exceeds his or her authority by “modifying the original arbitration award by rendering wholly new determinations on matters not addressed in the original award” (Matter of Outback Steakhouse, Inc. v. Contracting Mgt., Inc., 58 A.D.3d 855, 855 [2009] ), and “any award rendered after the original award is and void absent an agreement by the parties” (Silber v. Silber, 204 A.D.2d 527, 529 [1994], lv dismissed in part, denied in part 85 N.Y.2d 856 [1995] ). CPLR 7509 and 7511(c) permit an arbitrator to modify an award only upon a written request by one of the parties within 20 days and only to correct a miscalculation or mistaken description, an award granted on an issue not submitted for arbitration or a defect of form (see Silber, 204 A.D.2d at 529, 611 N.Y.S.2d 302 ).
Here, Rabbi Kenig and the Beth Din issued a May 2011 decision on the matter the parties herein submitted to arbitration. This decision rendered Rabbi Kenig and the Beth Din functus officio and terminated their ability to exercise authority over such issues. Accordingly, Rabbi Kenig lacked any power to issue a new or modified decision concerning the same parties and the same dispute. The 2013 Decision clearly cannot be considered a proper modification under CPLR 7509 and 7511 given that it falls well outside the prescribed deadlines and its substantive alteration of the prior award.
Pinkesz's contention that the 2011 Decision constituted merely an interim award and that the 2013 Decision was the corresponding final award is completely unsupported by the evidence submitted herein or the circumstances of the arbitration. The text of the 2011 Decision contains no hint that it was intended as an interim ruling and, similarly, the 2013 Decision does not state that it constitutes a final ruling following a prior interim ruling, instead explaining that its award is based on the receipt of new information. The letter that summoned Wertzberger to the July 2013 hearing also explained that it was initiated based on an allegation that Wertzberger failed to comply with the 2011 Decision and contained no indication that the prior award had been interim or that the July 2013 hearing would conclude open issues.
Furthermore, Pinkesz stated, in his verified petition, that the July 2013 hearing resulted when “new evidence became available and a second hearing was requested by Petitioner pursuant to the original arbitration agreement.” Pinkesz made no assertion that the 2011 Decision should be considered only an interim decision until after Wertzberger advanced the theory of functus officio. Additionally, issuing an interim decision concerning the brokerage commission and delaying a final decision concerning ownership interests in the policies until after only one insured had died would not, in any case, have made sense: if awaiting maturation was necessary to calculate the profit flowing to each investor, granting an award based on Pinkesz's purported share in the Julius Policy while Julius Pinkesz was still alive would be improper; conversely, if the award was based merely on the face values of the policies, no reason would have existed to delay rendering such an award in 2011.
Consequently, the 2013 Decision must be vacated. Although vacatur of an arbitration award typically results in remittal for further arbitration, remittal in this case would be inappropriate given the findings that no valid jurisdiction existed for the July 2013 hearing and that no dispute properly submitted to arbitration remains unresolved. Accordingly, it is
ORDERED that the Pinkesz to confirm the Beth Din decision dated July 22, 2013 is denied in its entirety; and it is further
ORDERED that Wertzberger's cross motion to vacate the Beth Din decision dated July 22, 2013 is granted in its entirety.
This constitutes the decision and order of the court.