Wednesday, May 10, 2017

Affirmation of an arbitral award.

The Appellate Division affirmed the granting of the petition to confirm a FINRA arbitration award.

An arbitral award can only be challenged under the criteria set forth in CPLR 7511. The procedural arguments that there was an agreement to arbitrate in New York and that the panel should have adjourned the hearing are not recognized grounds to bar confirmation. In any event, the objections were waived by participation in the arbitration, through an answer, selection of arbitrators, two motions to remove arbitrators, and two motions to dismiss.

Although an agreement can supersede FINRA's arbitration rules, the alleged agreement here was never placed into the record, and, even accepting respondent's characterization, it still provided for arbitration, albeit in New York rather than Florida.

Similarly, respondent's argument with regard to the failure to adjourn is unavailing. Not only is it not a ground under CPLR 7511, but even under the Federal Arbitration Act, refusal to adjourn where a party has full notice and provides no excuse for not attending is not misconduct.

While arguments of arbitrator bias are cognizable, they are unsubstantiated. Allegations that one arbitrator was biased because he was once bankrupt, and another because he had once represented a claimant at a FINRA arbitration, are insufficient.

Case:  Bortman v. Lucander, NY Slip Op 03600 (1st Dep't May 4, 2017)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.