

Matter of 1552 Broadway Retail Owner LLC v McDonald's Corp. (2017 NY Slip Op 03874)





Matter of 1552 Broadway Retail Owner LLC v McDonald's Corp.


2017 NY Slip Op 03874


Decided on May 11, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 11, 2017

Friedman, J.P., Moskowitz, Manzanet-Daniels, Kapnick, Webber, JJ.


651884/14 3994 3993

[*1]In re 1552 Broadway Retail Owner LLC, Petitioner-Appellant,
vMcDonald's Corporation, Respondent-Respondent.


Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for appellant.
Freshfields Bruckhaus & Deringer US LLP, New York (Timothy P. Harkness of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 8, 2017, inter alia, confirming an arbitration award dated February 23, 2016, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 10, 2017, which decided the parties' respective motions to vacate and confirm the award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Assuming that respondent engaged in misconduct in advancing certain arguments before the arbitrators, petitioner failed to show by clear and convincing evidence that it was prejudiced by this misconduct (see CPLR 7511[b][1][i]; Matter of Greenky v Aytes, 138 AD3d 460 [1st Dept 2016]; Scollar v Cece, 28 AD3d 317 [1st Dept 2006]). Neither the award, which determined that the fair market value of the demised premises fell between the values urged by the parties, nor the arbitrators' brief explanatory statements establish unequivocally that the arbitrators accepted respondent's arguments (see generally Solomon v State of New York, 146 AD2d 439 [1st Dept 1989]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 11, 2017
CLERK


