IN RE: Arbitration (2002)

Order and judgment (one paper), Supreme Court, New York County (Paula Omansky J.), entered November 15, 2001, confirming an arbitration award in favor of petitioner building owner and against respondent waterproofing contractor for $86,863 plus pre-award interest from April 9, 1998, and order and judgment (one paper), same court and Justice, entered April 30, 2002, as modified by stipulation dated May 29, 2002, awarding petitioner an additional $16,250, representing arbitration costs that were awarded in the arbitration award but not included in the first judgment, unanimously affirmed, without costs.

 Assuming that any award of punitive damages would have been improper, the mere possibility that such damages were included in the arbitrator's award does not warrant disturbing the award (see Tilbury Fabrics Inc. v. Stillwater, Inc., 56 N.Y.2d 624, 627, 450 N.Y.S.2d 478, 435 N.E.2d 1093;  compare Roth & Sons v. M & B Oxford 41, 298 A.D.2d 320, 750 N.Y.S.2d 10).   Nor should the award be vacated even if, as respondent speculates, the arbitrator considered documents and affidavits that petitioner submitted after the hearing testimony concluded, over respondent's objection.   Arbitrator discretion in procedural matters should not be restricted absent a compelling reason for departing from the strong policy against judicial interference in arbitration proceedings (see Avon Prods. v. Solow, 150 A.D.2d 236, 239-240, 541 N.Y.S.2d 406;  Matter of Herskovitz [Kaye Assocs.,] 170 A.D.2d 272, 565 N.Y.S.2d 804).   Similarly, given a broad arbitration clause (compare Matter of Excelsior 57th Corp. [Kern], 283 A.D.2d 209, 724 N.Y.S.2d 302) and the absence of a contractual provision specifically prohibiting pre-award interest (compare Matter of Yates Lansing Inc. [Town of Niskayuna], 202 A.D.2d 916, 610 N.Y.S.2d 879, lv. denied 83 N.Y.2d 758, 615 N.Y.S.2d 876, 639 N.E.2d 417), the award of pre-award interest cannot be successfully challenged as beyond the arbitrator's power simply because the parties' contract contains no provision therefor and petitioner made no such demand in the arbitration (cf.  Matter of Silverman [Benmore Coats], 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261).   As there is no dispute that petitioner was awarded $16,250 for arbitration costs, the second judgment should be deemed merely a resettlement of the first, and no reason appears why such resettlement was improper or inappropriate based on this record.

We have considered respondent's other arguments and find them unavailing.