IN RE: MARIANA TRADING INC. (2024)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about September 20, 2023, which denied the petition to vacate a final arbitration award, dated November 30, 2022, and granted respondents' cross-petition to confirm the award, unanimously affirmed, without costs.

Petitioner was a registered seller on respondents Amazon.Com Services, LLC and Amazon.Com, Inc.'s (together, Amazon) online platform.  Amazon deactivated petitioner's account because it found that petitioner had violated the customer product review policies in Amazon's Business Solutions Agreement (BSA).  At arbitration, petitioner sought the release of its account funds, representing customer payments for its sold merchandise, that Amazon had frozen.

Supreme Court properly granted the cross-petition to confirm the arbitration award.  Contrary to petitioner's contention, the arbitrator's rejection of petitioner's claim that, under Washington State law, section 2 of the BSA is an unenforceable penalty, rather than a liquidated damages clause, was not a manifest disregard of the law (see Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d 471, 481, 813 N.Y.S.2d 691, 846 N.E.2d 1201 [2006], cert dismissed 548 U.S. 940, 127 S.Ct. 34, 165 L.Ed.2d 1012 [2006];  Matter of Daesang Corp. v. NutraSweet Corp., 167 A.D.3d 1, 4–5, 15–16, 85 N.Y.S.3d 6 [1st Dept. 2018], lv. denied 32 N.Y.3d 915, 2019 WL 690307 [2019]).  The arbitrator found that the amount of losses withheld, $278,574.69, when compared to petitioner's total sales of $2,612,112.50, was not unconscionable.  Furthermore, petitioner agreed to the express terms of the BSA, and had other options for online selling of its merchandise.  Accordingly, the arbitrator's analysis demonstrates that the award had at least a “barely colorable” basis for its conclusion (Wien & Malkin, 6 N.Y.3d at 479–480, 813 N.Y.S.2d 691, 846 N.E.2d 1201).

Petitioner's remaining public policy arguments were untimely made before Supreme Court in its reply brief and, in any event, are unavailing (see Azzopardi v. American Blower Corp., 192 A.D.2d 453, 454, 596 N.Y.S.2d 404 [1993];  see also Denson v. Donald J. Trump for President, Inc., 180 A.D.3d 446, 450, 116 N.Y.S.3d 267 [1st Dept. 2020]).