Summary
affirming arbitration award that included disgorgement of more than four years of a disloyal employee's past salary and over $900,000 in attorney's fees under the faithless servant doctrine
Summary of this case from Kleeberg v. EberOpinion
6050N Index 653048/14 155645/14
03-20-2018
In re Sharon MAHN, Petitioner–Appellant, v. MAJOR, LINDSEY, AND AFRICA, LLC, Respondent–Respondent.
Finkelstein Filler LLP, Staten Island (Edward R. Finkelstein of counsel), for appellant. Littler Mendelson P.C., New York (David S. Warner of counsel), for respondent.
Finkelstein Filler LLP, Staten Island (Edward R. Finkelstein of counsel), for appellant.
Littler Mendelson P.C., New York (David S. Warner of counsel), for respondent.
Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.
Order and judgment (one paper), Supreme Court, New York County (Manual J. Mendez, J.), entered June 19, 2015, inter alia, denying the petition to vacate the arbitration award in respondent's favor, and granting respondent's motion to confirm the award, unanimously affirmed, without costs.
The matter involved interstate commerce, and was thus governed by the terms of the Federal Arbitration Act (FAA) ( 9 USC §§ 2 & 10 ; Matter of Diamond Waterproofing Sys., Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247, 252, 793 N.Y.S.2d 831, 826 N.E.2d 802 [2005] ), not the standard set forth in CPLR 7511(b). Nevertheless, since the requirements for vacatur of an arbitration award are nearly identical under the FAA and CPLR 7511, the result remains the same and the award was properly confirmed (see Hall St. Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 589 n. 7, 128 S.Ct. 1396, 170 L.Ed.2d 254 [2008] ). That the agreement to arbitrate between the parties provided for a different standard of review than that set forth in the FAA does not warrant a different result (see id. at 586–587, 128 S.Ct. 1396 ).
The arbitrator did not exceed her power in finding that petitioner was a faithless servant (see Lamdin v. Broadway Surface Adv. Corp., 272 N.Y. 133, 138, 5 N.E.2d 66 [1936] ; Visual Arts Found., Inc. v. Egnasko, 91 A.D.3d 578, 579, 939 N.Y.S.2d 13 [1st Dept. 2012] ). Nor was the award itself, which included disgorgement of petitioner's past salary and commissions, violative of public policy (see Soam Corp. v. Trane Co., 202 A.D.2d 162, 608 N.Y.S.2d 177 [1st Dept. 1994], lv denied 83 N.Y.2d 758, 615 N.Y.S.2d 875, 639 N.E.2d 416 [1994] ), or punitive in nature (see Matter of Blumenthal [Kingsford], 32 A.D.3d 767, 822 N.Y.S.2d 27 [1st Dept. 2006],lv denied 7 N.Y.3d 718, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ). There is also no evidence the arbitrator's findings should be vacated based upon conflicts or bias (see Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 105–106 [2d Cir.2013] ).
We have considered petitioner's remaining contentions and find them unavailing.