IN RE: Robert TOUSSIE (2018)

Judgment, Supreme Court, New York County (Charles E. Ramos, J.) entered August 15, 2017, in favor of petitioners, against respondents, in the total sum of $7,857,642.50, unanimously affirmed, without costs.  Appeal from amended order, same court and Justice, entered June 16, 2017, which, to the extent appealed from as limited by the briefs, granted petitioners' motion to confirm the arbitration award, and denied respondents' motion to vacate the award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Because respondents raised the alleged limitation on the arbitrator's authority during the arbitration, as well as in opposition to petitioners' motion to confirm and in support of their motion to vacate, they did not wave their right to challenge the award (Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 309, 473 N.Y.S.2d 774, 461 N.E.2d 1261 [1984];  Matter of Campbell v. New York City Tr. Auth., 32 A.D.3d 350, 352, 821 N.Y.S.2d 27 [1st Dept. 2006];  Matter of City of New York v. Local 1549 of Dist. Council 37, Am. Fedn. of State, County & Mun. Empls., 248 A.D.2d 125, 126, 669 N.Y.S.2d 559 [1st Dept. 1998] ).

Having reviewed the record, however, we conclude that the arbitrator did not exceed his powers by maintaining jurisdiction over the parties' dispute, the scope of which fell within the parties' agreements concerning arbitrable controversies (see Silverman, 61 N.Y.2d at 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261).

The damages award was appropriate, because specific performance was impossible (see Matter of Wynyard v. Antique Co. of N.Y., 214 A.D.2d 344, 344–345, 625 N.Y.S.2d 27 [1st Dept. 1995];  see also Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d 240, 242, 196 N.Y.S.2d 945, 164 N.E.2d 832 [1959] ).

The guaranty expressly provides for petitioners' recovery of attorneys' fees, and the Settlement Agreement, pursuant to which the parties arbitrated, expressly incorporates the terms of the guaranty.  Accordingly, petitioners could recover attorneys' fees in the arbitration.

We have considered respondents' remaining contentions and find them to be unavailing.