IN RE: Arbitration (2004)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Arbitration, etc., WARNER BROS. RECORDS, INC., Petitioner-Respondent, v. PPX ENTERPRISES, INC., Respondent-Appellant.

Decided: May 11, 2004

NARDELLI, J.P., LERNER, FRIEDMAN, GONZALEZ, JJ.

Harrington Henry LLP, New York (James J. Harrington of counsel), for appellant. Manatt Phelps & Phillips, LLP, New York (Gregory A. Clarick of counsel), for respondent.

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered April 16, 2003, which confirmed an arbitration award to petitioner of $76,195 in “legal fees,” unanimously affirmed, with costs.

Arbitrators retain exclusive authority to preclude re-arbitration of issues previously decided (Matter of City School Dist. of City of Tonawanda v. Tonawanda Educ. Assn., 63 N.Y.2d 846, 482 N.Y.S.2d 258, 472 N.E.2d 34). There is no basis on which to conclude that these arbitrators exceeded their authority.

The agreement between the parties did not specifically provide for attorneys' fees in the event of a dispute, but the arbitration clause did incorporate the Commercial Arbitration Rules of the American Arbitration Association. Rule 45(d) authorizes an award of attorneys' fees where, for example, all parties have requested such an award. Inasmuch as both sides are on record as having requested attorneys fees, the award was appropriate.

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