IN RE: SOLOW BUILDING COMPANY (2006)

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered April 13, 2005, which denied petitioner landlord's motion to renew its motion to vacate an arbitration award in favor of respondent tenant relating to the amount of rent escalation under a commercial lease, unanimously affirmed, with costs.

As the motion court held, this Court's decision in Wien & Malkin, LLP v. Helmsley-Spear, Inc., 12 A.D.3d 65, 783 N.Y.S.2d 339 [2004], revd. on other grounds 6 N.Y.3d 471, 813 N.Y.S.2d 691, 846 N.E.2d 1201 [2006] did not effect a change in the law with regard to the applicability of the federal “manifest disregard of law” standard of arbitration review in State court.   Any such change in the law occurred, at the latest, when the United States Supreme Court remanded this Court's prior decision in Wien & Malkin, 300 A.D.2d 32, 751 N.Y.S.2d 21 [2003], lv. denied 99 N.Y.2d 511, 760 N.Y.S.2d 103, 790 N.E.2d 277 [2003], vacated and remanded 540 U.S. 801, 124 S.Ct. 222, 157 L.Ed.2d 12 [2003] for reconsideration in light of Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 [2003], which clarified that the FAA applies to transactions “affecting commerce” (id. at 56, 123 S.Ct. 2037).   On remand, this Court merely applied well-established law as to the meaning of the term “manifest disregard of law” (Wien & Malkin, 12 A.D.3d at 70, 783 N.Y.S.2d 339, quoting Sawtelle v. Waddell & Reed, 304 A.D.2d 103, 108, 754 N.Y.S.2d 264 [2003];  see also Wien & Malkin, 6 N.Y.3d at 480-481, 813 N.Y.S.2d 691, 846 N.E.2d 1201).   Since the remand of Wien & Malkin for proceedings consistent with Citizens Bank was made in 2003, while the earlier appeal in this case was pending (6 A.D.3d 356, 776 N.Y.S.2d 547 [2004], lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 22, 818 N.E.2d 664 [2004], cert. denied 543 U.S. 1148, 125 S.Ct. 1310, 161 L.Ed.2d 110 [2005] ), those cases were applicable on the earlier appeal (see Americorp Sec. v. Sager, 239 A.D.2d 115, 116-117, 656 N.Y.S.2d 762, lv. denied 90 N.Y.2d 808, 664 N.Y.S.2d 269, 686 N.E.2d 1364 [1997] ), and renewal on the basis of a change in the law (CPLR 2221[e] ) was therefore unwarranted.   In any event, assuming the subject lease for office space in Manhattan between New York parties “affects” interstate commerce, and that the manifest disregard of the law standard applies, we would reach the same result.   There is no evidence that the arbitrators refused to apply or altogether ignored the injunction issued by this Court in 1985 binding the parties to a certain formula in the calculation of escalated rents (Morgan Guar. Trust Co. v. Solow, 114 A.D.2d 818, 823, 495 N.Y.S.2d 389 [1985], affd. 68 N.Y.2d 779, 506 N.Y.S.2d 674, 498 N.E.2d 147 [1986] ), or any other well-defined, explicit, clearly applicable law brought to their attention.   That the arbitrators may have applied the formula erroneously does not mean that they manifestly disregarded it (see Wien & Malkin, 6 N.Y.3d at 480-481, 813 N.Y.S.2d 691, 846 N.E.2d 1201).