WOLDMAN v. KENT (1997)

Plaintiffs Fern M. Woldman, David C. Magnano, D.C., and Barbara M. Magnano, and defendants, Henry and Maryanne Kent, are the owners of three parcels of property that share a right-of-way.   Their right-of-way agreement provides that, if the parties are unable to agree to the repairs and maintenance of the right-of-way, the dispute will be submitted to arbitration.   Supreme Court's order referring the matter to arbitration required the parties to submit as issues the responsibility for additional repair costs of the right-of-way caused by any party's or parties' prior act that may have affected the right-of-way;  the party or parties responsible for removal of barriers to the right-of-way;  and “[a]ny and all issues which will reasonably be required [to] resolve the issue herein”.   No appeal was taken from that order.

 The court properly confirmed the arbitrator's award.   We reject the contention of defendants that the arbitrator exceeded his powers by “in effect, mak[ing] a new contract for the parties” (Matter of National Cash Register Co. [Wilson], 8 N.Y.2d 377, 383, 208 N.Y.S.2d 951, 171 N.E.2d 302;  see, Matter of Buffalo Council of Supervisors & Adm'rs [City of Buffalo School Dist.], 214 A.D.2d 985, 986, 626 N.Y.S.2d 623, lv. denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160;  City of Canandaigua v. Canandaigua Police Officers Assn., 174 A.D.2d 1048, 1049, 572 N.Y.S.2d 213).   The issues submitted to arbitration were not strictly limited to the repair and maintenance of the right-of-way but encompassed issues that also “affected” the right-of-way.  “Once a controversy is properly before the arbitrator, he or she has wide discretion in the choice of remedies.   In the absence of a contrary public policy or an express provision in the arbitration agreement otherwise limiting his or her authority, an arbitrator has the power to fashion appropriate remedies, and is free to make an award which he or she feels is appropriate under the circumstances, even though it exceeds the remedy requested by the parties or provided for in the contract” (5 N.Y. Jur. 2d, Arbitration and Award, § 171, at 328-329;  see, Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 307-309, 473 N.Y.S.2d 774, 461 N.E.2d 1261;  Matter of Sprinzen [Nomberg], 46 N.Y.2d 623, 631, 415 N.Y.S.2d 974, 389 N.E.2d 456).

 Moreover, there is no proof in the record that defendants objected to the arbitrator's consideration of any of the matters decided in the arbitration.   Therefore, they “must be deemed to have acquiesced in the submission of the same to the arbitrator” (United Buying Serv. Intl. Corp. v. United Buying Serv. of Northeastern N. Y., 38 A.D.2d 75, 79, 327 N.Y.S.2d 7, affd. 30 N.Y.2d 822, 334 N.Y.S.2d 911, 286 N.E.2d 284;  see, Aigen v. Giannone, 49 A.D.2d 562, 370 N.Y.S.2d 186).

Finally, the contention of defendants that the award violates a strong public policy is without merit (see, Matter of Sprinzen [Nomberg], supra, at 630-631, 415 N.Y.S.2d 974, 389 N.E.2d 456).

Order unanimously affirmed with costs.

MEMORANDUM: