AVAMER ASSOCIATES v. 57 ST ASSOCIATES (2009)

Order and judgment (one paper), Supreme Court, New York County (Eileen Bransten, J.), entered April 1, 2009, which, inter alia, granted petitioners' application to vacate the arbitrators' modification of their clarification of their “Final Award,” unanimously affirmed, with costs.

As Supreme Court aptly stated, the arbitrators' acceptance of some of respondent's arguments in support of modification, and rejection of others, confirms that the arbitrators did not simply correct a miscalculation apparent on the face of the original award as clarified, but instead performed a later, separate analysis of the award's basis, i.e., of the actual figures used to calculate the total amount of damages.   Further confirmation that the arbitrators were reconsidering their original award as clarified, not merely correcting a computational error, is provided by the substantial difference between the amount requested by respondent and the amount awarded in the modification.   Accordingly, there was no proper basis for the modification under CPLR 7509 (see Matter of Israel Aircraft Indus. [DDY-Wing Aviation], 284 A.D.2d 281, 726 N.Y.S.2d 854 [2001];  Matter of Daly v. Lehman Bros., 252 A.D.2d 357, 675 N.Y.S.2d 535 [1998];  see also Hough v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 757 F.Supp. 283, 288 [S.D.N.Y.1991], affd. 946 F.2d 883 [2d Cir.1991] [CPLR 7511(c)(1) “construed literally” by courts to require that the miscalculation appear on the face of the award];  Silber v. Silber, 204 A.D.2d 527, 529, 611 N.Y.S.2d 302 [after award rendered, arbitrator lacks power to render a new award or to modify original, except as provided in CPLR 7509] ).