PAPAPIETRO v. POLLACK KOTLER

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Supreme Court, Appellate Division, Second Department, New York.

Carole A. PAPAPIETRO, respondent, v. POLLACK & KOTLER, et al., appellants.

Decided: July 19, 2004

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, and REINALDO E. RIVERA, JJ. Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, Stefan Kalina, and Harris J. Zakarin of counsel), for appellants. Randy M. Stein, Mineola, N.Y., for respondent.

In an action, inter alia, to vacate a confession of judgment in which the parties were directed to submit to arbitration the defendants' claim for legal fees for services rendered to the plaintiff in a matrimonial action, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated July 21, 2003, as denied their motion to confirm an arbitration award and as granted that branch of the plaintiff's cross motion which was to vacate the arbitration award.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants' assertions, the Supreme Court correctly determined that the arbitration panel's award for attorneys fees was not a “final and definite award,” and therefore vacatur of the award was warranted pursuant to CPLR 7511(b)(1)(iii).   The panel expressly stated that it did not consider the “issue of the confession of judgment,” which it deemed to be pending before the Supreme Court.   However, a determination of whether the defendants were entitled to an award for attorneys fees cannot be made, in this instance, without considering whether they violated 22 NYCRR 1400.5 in obtaining the confession of judgment, as such a violation would result in forfeiture of any unpaid fees (see Behrins & Behrins v. Sammarco, 305 A.D.2d 346, 759 N.Y.S.2d 151;  Bishop v. Bishop, 295 A.D.2d 382, 743 N.Y.S.2d 724;  Mulcahy v. Mulcahy, 285 A.D.2d 587, 588, 728 N.Y.S.2d 90).   Although the issue could have been addressed by the Supreme Court prior to the submission of the fee dispute to the arbitration panel, it also would have been proper for the panel to address the issue in reaching its determination (see 22 NYCRR 136.4[b];  Matter of Serazio-Plant, 299 A.D.2d 696, 698, 750 N.Y.S.2d 347).   Accordingly, the panel's decision not to address the issue rendered its award not “final and definite” and subject to vacatur (see Matter of Civil Serv. Empls. Assn. v. County of Nassau, 305 A.D.2d 498, 759 N.Y.S.2d 540;  Matter of Snyder-Plax v. American Arbitration Assn., 196 A.D.2d 872, 874, 602 N.Y.S.2d 64).

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