IN RE: METROPOLITAN TRANSPORTATION AUTHORITY et al. (2022)

Judgment, Supreme Court, New York County (Joel M. Cohen, J.), entered May 7, 2021, dismissing petitioners Metropolitan Transportation Authority and New York City Transit Authority's (together, MTA) petition for a stay of arbitration, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about April 23, 2021, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court correctly reached the issue of whether the claims asserted by respondent Westfield Fulton Center, LLC came within the scope of the arbitration provisions in the parties’ lease.  Although there are several provisions in the lease directing that the parties arbitrate specific substantive disputes, including section 3.1 upon which Westfield relies, there are no provisions stating “clearly and unmistakably” that the question of arbitrability is to be decided by the arbitrator (Zachariou v. Manios, 68 A.D.3d 539, 539, 891 N.Y.S.2d 54 [1st Dept. 2009]).

The court correctly dismissed MTA's petition to stay the arbitration.  Although Section 3.1 of the lease contains a narrow arbitration clause, the allegations in Westfield's statement of claim, broadly construed, all relate to “whether Substantial Completion or Final Completion has occurred.”  Accordingly, the court correctly concluded that respondent's claims triggered the arbitration clause.  Further, even if some of the relief requested in the arbitration appears to fall outside the narrow arbitration clause, that alone is not a basis to stay the arbitration as long as “the fashioning of some relief on the issue sought to be arbitrated remains within the arbitrator's power” (Zachariou, 68 A.D.3d at 540, 891 N.Y.S.2d 54 [internal quotation marks omitted]).  This includes Westfield's request for attorneys’ fees under section 23.1 of the lease, should it ultimately prevail at arbitration.

The Decision and Order of this Court entered herein on April 28, 2022 is hereby recalled and vacated (see M–02160 decided simultaneously herewith).