Joseph Menczer, Petitioner, v. AARON OBERLANDER JOSEPH MENCZER EUGENE LEFKOWITHZ YISROEL LOEFFLER ARON GOLDBERGER ARON SEIDENFELD DAVID SNEH ISRAEL GRUNWALD HUMAN CARE SERVICES FOR FAMILIES CHILDREN INC HCS (2026)

This matter arises from an arbitration award issued by Rabbi Yehudah Yerachmiel HaLevi Gruber ("Rabbi Gruber") dated December 17, 2025 pursuant to a Bet Dein agreement to arbitrate dated January 16, 2017. In a proceeding pursuant to CPLR Article 75, petitioner Jonathon Joseph Menczer ("Menczer") seeks vacatur of the award issued by Rabbi Gruber and a declaration that the parties' prior agreements to arbitrate before Rabbi Gruber were rescinded and superseded by agreements executed on February 19, 2025 to arbitrate before the Central Rabbinical Council ("CRC"). Cross-petitioner Joseph Yechiel Goldberger ("Goldberger") similarly seeks vacatur of the Gruber award, a permanent stay of proceedings before Rabbi Gruber, and an order compelling arbitration before the Beth Din of the Central Rabbinical Congress ("CRC"), or alternatively appointment of a substitute Beth Din pursuant to CPLR § 7504.¹

By Order to Show Cause dated December 30, 2025, the Court entered a temporary restraining order ("TRO"), staying enforcement of Rabbi Gruber's arbitration award pending determination of the parties' applications. Respondent Aaron Peretz Oberlander ("Oberlander") contended that he never signed an agreement or document to rescind Rabbi Gruber's authority to rule on the issues and that Rabbi Gruber's arbitration award should therefore be confirmed pursuant to CPLR §§ 7510 and 7514.

This case involves two issues—whether all parties agreed to rescind their prior agreement to adjudicate all issues concerning the running and ownership of Human Care Services for Families & Children, Inc. ("HSC") before Rabbi Gruber and, assuming there was no recision, whether Rabbi Gruber's award should nevertheless be vacated. From the outset, since Oberlander withdrew his motion to confirm, the burden of proof as to the authenticity or lack thereof of Oberlander's signature to rescind rests upon the petitioners. Additionally, during the February 5, 2026 hearing, in response to the court's query as to whether it was necessary for all parties to agree to leave an arbitration panel to another, Mr. Appel, counsel for petitioners, responded that unanimous consent was required, "both under Arbitration Law Article 75 and under Jewish law." (Transcript 7:1-20) Therefore all parties agreed that if one of the three parties objected, all parties would have to stay with the original arbitrators. As such, a hearing was held solely on whether Oberlander signed and or agreed to leave the Gruber arbitration, not on other issues raised in the petition to vacate.

This dispute arose over who controls the HSC—a community-based, not-for-profit organization—which was founded by Rabbi Goldberger in or about 1996 to provide essential social, educational, and therapeutic support services to children and families with developmental disabilities. Goldberger alleges that he grew HCS into a "a well-respected and widely utilized social services agency, serving thousands of families and employing numerous professionals, therapists, and support staff." He claims that Oberlander joined HCS, and in or about 2012, "unilaterally declared himself the new President and Chief Executive Officer of HCS," and excluded its founder from governance. Oberlander, on the other hand, claims that the Board of Directors voted him in as the President and Chief Operating Officer and that he was the one who grew HSC into a successful and essential entity that improves the lives of thousands of individuals and families with unique developmental needs and that Menczer and Goldberger tried to seize control of HCS.

Based upon this dispute the parties, consisting of Party A—Menczer and Goldberger—and Party B—Oberlander, chose to arbitrate before Rabbi Gruber of Beis Din Trzedek." The Beis Din agreement provides that the parties are "required to comply with whatever will be issued by him, without any appeal and evasion at all." It provides that the validity of the agreement is governed by same laws as "of our holy Torah" and state law. It also provides that if one of the signed parties evades appearing before the Beis Din to complete arguments, the court may issue a ruling in accordance with his opinion, and the parties will adhere to the Rabbinical court ruling "without any appeal at all." Curiously, on August 22, 2018 the parties acknowledged that certain matters occurred between Rabbi Gruber and the parties which could potentially cause the rabbi to have predisposition either for or against one of the parties but that they nevertheless accept the "binding procedures to continue the litigation " before the rabbi and accept the opinion and rabbinical court ruling "that will be issued by him, with no appeal."

By early 2025, the parties could not obtain hearing dates and no one disputes that the arbitration remained unfinished. When the Court asked whether any writing showed that the record was complete and no further dates were needed, Oberlander's counsel confirmed that none exists from either side (06/11/26 Tr. at 16). Respondent does not dispute petitioner's claim that the last session held by Rabbi Gruber preceded the award by four years and in fact called the proceeding "stagnant."

The instant framed issue hearing arose from a purported recision of Rabbi Gruber's authority to continue hearing the case. Petitioner claims that on February 19, 2025, the parties changed tribunals in writing wherein Goldberger, Menczer, and Oberlander executed a Note of Arbitration accepting the authority of the Beis Din Zedek of the Central Rabbinical Congress ("CRC") to sit in judgment about all claims and arguments regarding HCS. The note also rescinded Rabbi Gruber's authority in the following terms: "[Rabbi Gruber] no longer has any authority and power to sit in judgement or to issue a ruling regarding the aforementioned matter; and even if he already signed a ruling, it has no validity" (Goldberger Aff., Ex. A).

By email dated February 26, 2025, Oberlander inquired of Rabbi Gruber that "since it's tough to date for sessions lately," that if Rabbi Gruber had not yet written a decision "which I [Oberlander] assume is the case" could the parties switch to a new arbitrator who would hear the disputes and render a decision, and the arbitration agreement signed before Gruber would be deemed null and void. Oberlander ended the email by stating "the above is only in effect if all parties agree." Rabbi Gruber responded by email on that same date "No problem." There were no further email communications between the parties and Rabbi Gruber. Nor do the parties dispute that no one further responded that the record was complete and should be closed.

This Court did not conduct a mini trial on all the communications between petitioners and the CRC and will not credit Goldberger's allegations that an independent Bet Din concluded that the CRC had jurisdiction. However, it does appear that the CRC attempted to hold hearings and that Oberlander did not confirm that he was available for any dates This resulted in Goldberger filing a lawsuit compelling arbitration before CRC. Justice Menachem Mirocznik, Justice Peter Sweeney and this Court preserved the status quo of HCS by orders that remain in effect.

For some unknown reason the CRC declined to hear the case. By Decision dated December 9, 2025, the CRC wrote that it did not wish to get involved to adjudicate the dispute between plaintiff Goldberger and defendant members of the Board of HCS (Oberlander is not mentioned as a party in this decision). Eight days later, on December 17, 2025, Rabbi Gruber issued a purported final award.

In the preamble to his final Rabbinical Court Ruling ("Award"), Rabbi Gruber wrote: "Being that a long time has passed from the time when all the arguments were heard, after which I performed the research and my determinations about it; under Jewish Law, it is not proper and fair to drag it out for no reason." Rabbi Gruber therein sent his Award and appendix which "is binding upon the parties with no evasions." The Award ordered Oberlander and HCS to pay a total of $700,000 to Menczer and Goldberger over a period of ten years—$70,000 per annum, with the payments to be deposited with Rabbi Gruber himself, who would determine whether any of the plaintiffs violated the terms of the appendix et al, in which case the "violator will not receive his payment." He also wrote that as long as one of the parties has new arguments or claims or arguments relating to the interpretation and implementation of the Ruling they are to come before Gruber. In the appendix, Rabbi Gruber wrote that defendants Oberlander and the HCS board claimed that plaintiffs were causing them damages and that if the Rabbinical Court were to find violations, then he would deduct from the payments to defendants as he saw fit. The Court described the sequence after the CRC declines as, "then abracadabra delay, Gruber writes a decision" (06/11/26 Tr. at 25).

Menczer and Goldberger then filed a petition and cross petition, respectively to vacate the award and compel arbitration before the Beth Din CRC or alternatively, for the Court to appoint a substitute rabbinical tribune. They also sought a TRO and preliminary injunction enjoining enforcement of the Award, which the court granted. Oberlander subsequently petitioned to confirm the award, which he subsequently withdrew for appointment of a substitute rabbinical tribunal under CPLR.²

By letter dated January 29, 2026, Counsel for Oberlander set forth that Oberlander did not sign either purported agreement "and that the signatures appear to be forgeries." He also indicated that his retained expert had opined that the questioned signatures did not belong to Oberlander and that his opinion was rendered to the "highest degree of scientific certainty. He requested that the TRO be dissolved because the arbitration demand was based upon forged agreements,

THE FRAMED ISSUE HEARING

Based upon Oberlander's assertion that he never signed the February 26th agreement to divest Rabbi Gruber of authority to hear and rule in the arbitration, the Court held a framed issue hearing on the authenticity of Oberlander's initials or signature on the agreement to rescind Rabbi Gruber's authority and appoint CRC. In response to the Court's query as to whether, in a matter involving three parties, two parties could leave the agreed-upon arbitration without the third, Mr. Appel (attorney for petitioners) responded that unanimous consent was required, "both under Arbitration Law Article 75 and under Jewish law." (Tr. 2/05/26 hearing.). Mr. Appel stated that neither Jewish Law nor Article 75 permit one or two of the three parties to say they no longer want to deal with the arbitrator—"it has to be a unanimous agreement."

The first witness, Yumi Weiss, testified that he texted Oberlander, "Where can we meet I need to get a signature," and then traveled to Boro Park, at Oberlander's direction, and reported to someone that the paper had been updated. According to Yumi, Oberlander transmitted the

executed Note of Arbitration to Mendel Brach with the message "Please confirm Thanks"; Brach

confirmed and forwarded it onward (Goldberger Aff., Ex. E). However, Yumi could not account for the whereabouts of the original agreement which supposedly had Oberlander's signatures in ink or whether he gave to or received the original back from the person who allegedly identified himself as Oberlander. Yumi had never seen or met Oberlander prior to February 19th but indicated that he texted Oberlander and that some person came downstairs in Boro Park on 39th Street and gave him the recision agreement.

There is not much to write about the two handwriting experts presented by petitioners and respondent as neither could authenticate or validate that the scribbling initial on the recision agreement was that of Oberlander. Petitioner's expert, Richard Picciochi, could not offer any opinion about the validity of the signature as he was not familiar with the Hebrew writing system and intimated that he had never seen a scribbling akin to what was on the Hebrew recision agreement. He therefore did could not even assert that he possessed any opinion to a reasonable degree of certainty as to the signature and therefore did not meet the standard that an expert opinion testimony is required to meet. See, DeFillippo v. N.Y Downtown Hosp., 10 AD3d 521, 523 (1st Dept. 2004). Oberlander's expert, Grace Warmbier concluded with the "highest degree of confidence" that the purported signature was not written by Oberlander.

RULINGS

A. WHETHER THERE WAS A RECISION OF THE AGREEMENT TO ARBITRATE BEFORE RABBI GRUBER

The threshold issue—the existence of a valid agreement to arbitrate—is for the courts, not the arbitrator to decide. Mtr. Of AT&S Transp.., LLC v Odyssey Logistics & Tech Corp. 22 AD3d 750, 752 (2d Dept. 2005); God's Battalion of Prayer Pentecostal Church v. Miele Assoc., LLP, 10 AD3d 671 (2d Dept. 2002). Petitioners bore the burden of establishing whether or not a valid agreement to arbitrate before the CRC, and concomitantly, whether the parties agreed to rescind Rabbi Gruber's authority by clear, explicit and unequivocal evidence. Cf. Waldron v. Goddess, 61 NY2d 181, 183. The right to recision must be proven by clear and convincing evidence. Smilen Realty 155, LCC v. Fedorova, 242 AD3d 1242, 1242-45 (2d Dept. 2025); Perlbinder v. Vigilant Ins. Co., 190 AD3d 985, 988 (2d Dept. 2021); Silver v. Gilbert, 7 AD3d 780, 781 (2d Dept. 2004). They likewise bore the burden of proving the authenticity and admissibility of those documents which support their argument that the parties rescinded their agreement with Gruber.

Arbitration is akin to a contract and no party can be required to submit to arbitration a dispute that he has not agreed to submit. Mtr. Of Monarch Consulting Inc., v. National Union Fire Ins. Co. Of Pittsburgh, 26 NY3d 659 (2016); Goldberger v. Wertzberger, 2021 NY Slip Op 5047 (U); 2021 NY Misc. LEXIS 2643 (Sup. Ct. Kings Co. 2021). A party to an arbitration agreement may not be compelled to arbitrate its dispute with another arbitrator "unless the evidence establishes the partes' clear, explicit and unequivocal agreement to arbitrate." Golberger, supra, citing to Mtr. Of Jalas v. Halperin. 85 AD3d 1178 1182 (2d Dept. 2011).

It is uncontested that neither party's expert confirmed that the scribbling on the English notice dated February 19th was that of Oberlander. At the framed-issue hearing, petitioners likewise bore the burden of proving that Oberlander signed the Agreement, which would evidence his consent to rescind. See also Kegg v. Truck-Rite Distribution Sys. Corp., 84 Misc 3d 564, 573 (Sup. Ct. Kings County June 18, 2024 No.522684/2018) ("The genuineness of a signature on a purported written statement must be proved by the party seeking to use it."). The only document purporting to rescind Rabbi Gruber's authority is the Hebrew-language Recision Agreement. See NYSCEF Doc. No. 9. After the expert's testimony this court found that petitioners did "not prove[ ] [the signature] is Oberlander's handwriting," and therefore failed to prove recision. (Tr. Day 5 (Levine, J.) 4:6—7). Oberlander also correctly points out that since petitioners did not prove by any standard, much less clearly and unequivocally that Oberlander signed the recision agreement, it cannot come into evidence to prove that there was so called mutual assent to terminate Rabbi Gruber's authority.

Petitioners attempt to prove that Oberlander in fact signed the agreement by pointing to an email dated February 26, 2025, one week after he allegedly signed the agreement wherein Oberlander wrote to Rabbi Gruber inquiring that if he "had not yet written a decision (which I assume is the case)" could the parties switch to a new Arbitrator who would hear the disputes and render a decision and the arbitration agreement signed before Gruber be deemed null and void. Oberlander ended the emails by stating "the above is only in effect if all parties agree." Rabbi Gruber responded by email on that same date "No problem." This email does not establish by clear and explicit evidence that Oberlander agreed to rescind the agreement. In fact, his request is prefaced by "the above is only in effect" if everyone agrees and again, there is no proof that he agreed.

As a general proposition, an adverse inference cannot be used to supply proof of a fact. See, In re Samantha C., 268 Conn. 614, 638, 847 A.2d 883 (Sup. Ct. Conn. 2004). In K.S. v. C.S., 232 Conn. Appl 163, 334 A. 2 533 (App. Ct Conn. 2025), the court noted that after a prima facie case is established, an adverse inference may be drawn against a party for his failure to rebut evidence by testifying. See also, Meridian Med. Techs., Inc. v. Int'l Bhd. Of Teamsters, 158 F. 4th 924, 930 (8th Cir. 2025) ("Drawing an adverse interest from the failure of a party to present a key witness is "most reasonable when it is the party with the burden of proof on that issue who fails to do so.") Here, petitioners bore the burden of proving, on their motion to vacate Rabbi Gruber's decision, that the parties had rescinded their agreement to arbitrate. Since petitioners failed to establish their prima facie case of recision, there was nothing for Oberlander to rebut and an adverse inference is not in order.

Furthermore, the effect of an adverse inference is only permissive. Fifth Ave. Surgery Ctr. LLC v. JJS Grp. Inc, 249 AD3d 514, 515 (1st Dept. 2026) citing to Baez v City of New York, 278 AD2d 83, 84 (1st Dept. 2000) ("[A]n adverse inference is distinguishable from a rebuttable presumption.... The latter shifts the burden of proof while the former only permits the trier of fact to reach a conclusion; a rebuttable presumption has a required effect, while the effect of an adverse inference is only permissive"). A party's failure to testify does not permit the court to "speculate about what the testimony might have been." 855-79 LLC v. Salas, 40 A.D. 3 553, 556 (1st Dept. 2007). It does not require and only permits an adverse interest. Id. citing Mtr. Of Comm. Of Social Services v. Phillip Dr. G., 59 NY2d 137, 141 (1983).

In sum, the Court finds that an adverse inference is not mandatory and is not in order in the instant matter. Petitioners failed to authenticate the purported Rescission Agreement, establish its admissibility, or prove by clear, explicit, and unequivocal evidence that the parties mutually agreed to rescind the prior arbitration agreement before Rabbi Gruber. Accordingly, any conceivable adverse inference would not alter the Court's findings or conclusions.

B. VACATUR IS NOT IN ORDER

On June 11, 2026 the Court commented that it had made a "partial decision" on the motion to vacate—that the petitioners had failed to prove that it was Oberlander's signature and therefore there was no recision of Rabbi Gruber's jurisdiction. The Court explained that its signature finding "does not mean everything is clear, it doesn't, because it's a mess," and that "I can't just close the hearing and say, go affirm the award. They have a right to tell me what they think is going on." (June 11, 2026 Tr. 30). The Court had previously found the eight-day hiatus between CRC's decision not to take the arbitration and the issuance of Rabbi Gruber's decision to be questionable and commented during the February 5, 2026 hearing that "I find the timing of all of this kind of suspicious." The court inquired whether this "was...a full and fair arbitration?" (Feb. 5, 2026 Tr. 8: see also 24-25:2), and observed of the purported award, "[h]e just says Oberlander has to pay money," and asked, "[s]o did he even make a determination about the reason why you originally went to the arbitration, or he's just trying to compensate you?" (Feb. 5, 2026 Tr. 29-30).

Goldberger argues that CPLR §§ 7511 (b) (4) and 7506 (b)and (c) were violated because Rabbi Gruber made a final determination while the proceedings remained unfinished and did not give them a meaningful opportunity to be heard on every issue. To that end, he contends that a four-year hiatus in hearing the case mandates a vacatur and implies that something "unkosher" happened since Gruber issued a decision a week after the CRC issued a letter declining to exercise jurisdiction over the matter.³ As a second ground for vacatur, Goldberger argues the award was independently void since Rabbi Gruber did not make a final and definite determination of the submitted controversy.

Pursuant to CPLR 7511 (b) (1), an arbitration award may be vacated on the application of a party who participated in the arbitration, only if the party was prejudiced by either (1) corruption, fraud, or misconduct in procuring the award, (2) partiality of a supposedly neutral arbitrator appointed, (3) an arbitrator who exceeded his powers, or (4) the failure to follow procedures provided by Art. 75. Goldfinger v. Lisker, 68 NY2d 225, 231 (1986). Mtr. Of J-K Apparel Sales Co., Inc. v. Esposito, 189 AD3d 1045 (2d Dept. 2020); Mtr of Soliman v. Suffolk County Dept. of Public Works, 155 AD3d 1049 (2d Dept 2017); Mtr of Matra Bldg. Corp. v. Kucker, 2 AD3d 732).

CPLR 7506 (b) provides that "[t]he arbitrator shall appoint a time and place for the hearing, notify the parties of the hearing and may adjourn or postpone the hearing. The court, upon application of any party, may direct the arbitrator to proceed promptly with the hearing and determination of the controversy. CPLR § 7506(c) provides that "[t]he parties are entitled to be heard, to present evidence and to cross-examine witnesses. Notwithstanding the failure of a party duly notified to appear, the arbitrator may hear and determine the controversy upon the evidence produced."

It is well settled that judicial review of arbitration awards is extremely limited. Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471, 479 (2006); Mtr. Of Andrews v. County of Rockland, 120 AD3d 12271228 (2d Dept. 2014). "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence." Bench v. Brookhaven Heart, PLLC , 236 AD3d 902, 903 (2d Dept. 2025) citing to Mtr. Of Douglas Elliman of LI, LLC v O'Callaghan, 220 AD3d 945, 946 (2d Dept. 2023). The party must establish that the award "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power under CPLR 7511 (b)(1)" Mtr of N.Y.S. Correctional Officers & Police Benevolent Assn. v. State of New York, 94 NY2d 321, 326 (1999); Desiderato v. N & A Taxi, Inc., 190 AD2d 250, 256 (1st Dept. 1993). An arbitration award must be upheld when that arbitrator offers a "barely colorable justification" for the outcome reached. Mtr of Andros Cia Maritima, S.A., 579 F.2d 691, 704 (2d Cir. 1978); Wien & Malkin, supra.

An argument that the arbitrator rendered his award in an untimely manner is not a ground for vacatur. Scollar v. Cece, 28 AD3d 317 (1st Dept. 2006) citing Mtr. of Westminster Constr. v Peconic Bay Golf, 288 AD2d 231(1st Dept. 2001). Pursuant to CPLR 7507 "[a] party waives the objection that an award was not made within the time required unless he notifies the arbitrator in writing of his objection prior to the delivery of the award to him". Furthermore, even assuming a defendant satisfied CPLR 7507, he must indicate prejudice from the delay in the issuance of the Award. See, Scollar v. Cece, supra, 28 AD3d 317, Mtr. of Westminster Constr. v Peconic Bay Golf, supra, 288 AD2d at 232; Reed v. Dept of Educ., 2014 NY Slip Op 31266(U), 2014 NY Misc. LEXIS 2232 (Sup Ct NY Co. 2014) (CPLR 7507 does not render a late arbitration award unenforceable in the absence of prejudice arising out of such delay.) See also Messina & Briante Inc. v. Blitman Constr. Corp. 32 Misc., 3d 21 (Sup Ct. Westchester County 1961) aff'd 19 AD2d 862 (delay of almost three years in making an award after last hearing is not a ground for vacatur as the statute provides no time limit for a decision in an arbitration proceeding, unless the parties have so stipulated in their contract).

Here, the contract to arbitrate before Rabbi Gruber contains no contractual time limit. Nor does Goldberger assert that he, as opposed to any other party to the arbitration, was prejudiced by such a delay. In fact, the only inquiry to Rabbi Gruber as to his delay in reconvening the arbitration came from Oberlander. In sum, Goldberger has not proven by clear and convincing evidence, much less any lower standard that he, as opposed to any other party to the arbitration, was not given an opportunity to be heard or was prejudiced by the delay. His allegations of prejudice arising out of the delay are wholly conclusory.

Petitioner's second argument for vacatur is that the award did not make a final determination of every controversy submitted and that the arbitrator reached a conclusion about how much Oberlander should pay Goldberger and Menczer without even determining the predicate issues of governance and control. The Court recognized this as early as February 5th that Gruber had not resolved most of the issues presented before it, asking "[i]f this whole thing was a dispute about who should be on the board of directors and what Oberlander did, why is the net result of Gruber(s)...decision that he just pay money. He doesn't direct that this board of directors be absolved. He just says Oberlander has to pay money."(Tr. 2/5/26 at 29). Counsel for petitioners confirmed that Gruber just made a decision about the money, not the control of HCS. (Id at 30 ). On June 11, 2026 the Court announced "a partial decision" that petitioners had not proven recision of the Gruber contract and stated that "there may be other aspects of this vacatur I need to hear" and stated that it could not "just close the hearing and say, go affirm the award," and directed briefing by July 10, 2026 on the grounds for vacatur.

`The cure for this defect is to remand the matter back to Rabbi Gruber. Pursuant to CPLR 7510, a court shall either confirm, vacate or modify an award. Where an award issued by an arbitrator is neither final nor complete and confusion appears as to an unresolved issue, the case should be remanded back to the original arbitrator. In re Howard, 91 AD2d 996, 997 (2d Dept. 1983). See, Bongiovanni v. Niagara Falls, 181 AD2d 1033 (4th Dept 1992). See, St. Martin's Hous. Corp. v. Hallian Cleaners, Inc., 109 AD2d 687, 687 (1st Dept. 1985) ("[t]o the extent that the award is ambiguous, a remand is necessary.") Where an award is ambiguous, indefinite or unclear, the courts are empowered to remit to the arbitrator for clarification. James R. Rosencrantz & Son, Inc. v John Deere Co., 2026 U.S. Dist. LEXIS 84331 (D.N.H. 2025). Additionally, when the award does not adjudicate an issue which has been submitted, then the arbitrator has not exhausted his function and he may make a subsequent determination. Smarter Tools Inc., v. Chongqing SENCI Import & Export Trade Co., 57 F. 4th 372, 379 (2d Cir. 2023).

Thus, where an award is based upon a precise mathematical calculation it may be necessary to know the basis for the calculations for underlying the award. "A remand for clarification "would not improperly require the arbitrator to reveal their reasons. But would instead simply require them to fulfill their obligation to explain the award sufficiently" to permit for review. Smarter Tools Inc., supra, 57 F. 4th at 380 citing to Siegel v. Titan Industrial Corp, 779 F.2d 891, 894 (2d Cir. 1985). Where an arbitrator has failed to make affirmative factual findings to support their award (here, of expungement relief) and not furnished a record supporting for such relief, a court must remand the dispute to the original arbitrators to provide "amended awards containing specific affirmative factual findings... to support" the awards. Mtr. Of Johnson (Summit)), 22 Misc 3d 631, 668 (Sup. Ct. NY Co. 2008) An arbitration award that fails to settle the dispute, "relegating the parties to new controversies or future litigations in order to ascertain their rights," is deemed to be "so imperfectly executed" as not to constitute "a final [and] definite award upon the subject matter submitted" Sands Bros. & Co. v. Generex Pharms., Inc., 279 AD2d 377, 378 (1st Dept. 2001).

Petitioners assert "[n]or is the document final and definite within the meaning of CPLR 7511(b)(1)(iii) because it leaves the submitted controversy over the governance of HCS undecided, directs $700,000 in payments to be deposited with Rabbi Gruber himself, conditions any distribution on findings he may make in the future, and purports to reserve every future dispute to his sole and perpetual jurisdiction while barring recourse to the courts (Goldberger Aff. ¶¶ 84-89). In Hamilton Partners Ltd. v. Singer, 290 AD2d 316 (2002) the First Department explained that remittal rather than vacatur is appropriate where an award does not address, resolve or dispose of particular issues raised by the parties, or make clear the arbitrators intent with respect to them It also found remittal proper where the arbitrator made no findings of fact or credibility and was ambiguous and insufficiently explicit. See, Mtr of Kaufman v. Kaufman Bros., LP, 33 Misc 3d 1046, 1049 (Sup. Ct. NY County, 2011). Likewise, here, other than directing Oberlander to pay petitioners $70,000 per month, the award does not discuss, much less make a final determination of every controversy submitted including the predicate issues of governance and control. Since Oberlander withdrew his motion to confirm the award, Rabbi Gruber must clarify his decision and decide the other issues listed above.

In sum this court finds that the Agreement to arbitrate before Rabbi Gruber was not rescinded; and it is:

ORDERED that petitioners' motion to vacate is DENIED; and it is further

ORDERED that this case is remanded back to Rabbi Gruber to clarify his decision and decide on the unresolved issues described, supra, and it if further

ORDERED that Rabbi Gruber convene the parties to continue the arbitration within four weeks of this Decision and Order, and that he considers all the parties arguments and moves the arbitration forward expeditiously.

ENTER:

Hon. Katherine A. Levine J.S.C.

FOOTNOTES

1.   Goldberger and Manczer will sometimes be referred to as "petitioners"

2.   See paragraph supra for more detailed procedural history.

3.   The cases cited by respondent-cross petitioner are inapposite since there is no direct evidence that there were private or ex-parte communications between the arbitrator and one of the parties, thereby prejudicing the other party and their rights under CPLR 7506 (Goldfinger v. Lisker, 68 NY2d 225 [1986]; Mtr of Paluch v. Kohn, 204 AD3d 804 [2d Dept. 2022]) and no evidence that Gruber denied petitioners as opposed to respondent the right to notice or opportunity to be heard (Siegel v. Landy, 95 AD3d 989 ( 2d Dept. 2012 ).

Katherine A. Levine, J.