| Matter of Glatzer v Glatzer |
| 2010 NY Slip Op 04586 [73 AD3d 1173] |
| May 25, 2010 |
| Appellate Division, Second Department |
| In the Matter of Rose Glatzer, Appellant, v Jay Glatzer etal., Respondents. |
—[*1] Bathsheba Epstein-Hersko (Rosner Nocera & Ragone, LLP, New York, N.Y. [Gerald M.Jacobs], of counsel), for respondent Jay Glatzer.
In a consolidated proceeding, inter alia, pursuant to CPLR article 75 to vacate an arbitrationaward dated October 6, 2006, and action for a divorce and ancillary relief, the petitioner/plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County(Thomas, J.), dated May 8, 2008, as denied her petition and confirmed the award, and grantedthat branch of the respondent/defendant's cross motion which was for an award of costs and forthe imposition of a sanction pursuant to 22 NYCRR 130-1.1, to the extent of directing both thepetitioner/plaintiff and her attorney to each pay a sanction in the sum of $1,000.
Ordered that the appeal by the petitioner/plaintiff from so much of the order as granted thatbranch of the respondent/defendant's cross motion which was for an award of costs and for theimposition of a sanction pursuant to 22 NYCRR 130-1.1, to the extent of directing her attorneyto pay a sanction in the sum of $1,000, is dismissed, as the petitioner/plaintiff is not aggrieved bythat portion of the order (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the respondent/defendant's cross motion which was for an award of costs and theimposition of a sanction pursuant to 22 NYCRR 130-1.1, to the extent of directing thepetitioner/plaintiff to pay a sanction in the sum of $1,000, and substituting therefor a provisiondenying that branch of the cross motion; as so modified, the order is affirmed insofar asreviewed, without costs and disbursements.
The petitioner/plaintiff wife and the respondent/defendant husband, who were separated,agreed to arbitrate "all disputes between" them before a rabbinical court, or Beth Din, including,among other things, issues of equitable distribution, child support, maintenance, and "all relatedmatters stemming out of [their] marriage." As relevant here, the Beth Din issued an award, datedOctober 6, 2006, and the wife commenced this proceeding to vacate it. The Supreme Court, interalia, denied the petition, confirmed [*2]the award, and grantedthat branch of the husband's cross motion which was for an award of costs and the imposition ofa sanction pursuant to 22 NYCRR 130-1.1, to the extent of directing the wife and her attorney toeach pay a sanction in the sum of $1,000.
The wife contends that the Supreme Court should have vacated the arbitration award datedOctober 6, 2006, on the ground that one of the rabbis on the Beth Din was not a neutralarbitrator. However, the record indicates that the parties agreed to appoint the members of theBeth Din by "Zabla," in which each party selected one arbitrator, and the two appointedarbitrators then selected a third neutral arbitrator as the presiding member of the panel (seeZeiler v Deitsch, 500 F3d 157, 160-161 [2007]; Berg v Berg, 20 Misc 3d 1142[A],2008 NY Slip Op 51823[U] [2008]). "The law recognizes the practical reality that, in a standardtripartite arbitration each party's arbitrator is not individually expected to be neutral" (Matterof Meehan v Nassau Community Coll., 243 AD2d 12, 17 [1998] [internal quotation marksomitted]). The wife failed to establish that the arbitrator designated by the husband engaged inmisconduct warranting vacatur of the award (see Matter of State Wide Ins. Co. v Klein,106 AD2d 390, 390-391 [1984] ["It is clear that a party-designated arbitrator who will serve on atripartite panel of arbitrators cannot be disqualified, as a matter of law, because of partiality; infact, the arrangement itself was conceived so as to allow each party the opportunity to have hisside represented on the tribunal"]).
Further, the wife waived any claims related to the alleged bias of an arbitrator by proceedingwith the arbitration after learning of the relationship between the husband's counsel and thearbitrator (see Matter of Raitport v Salomon Smith Barney, Inc., 57 AD3d 904, 906[2008]; Matter of Reilly v Progressive Ins. Co., 5 AD3d 776, 777 [2004]; Matter ofArner v Liberty Mut. Ins. Co., 233 AD2d 321 [1996]). Moreover, the wife failed to establishthat the arbitrators barred her attorney from the arbitration hearing on March 2, 2006. The recordreveals that the wife's counsel chose not to attend that hearing (see Matter of Griffin vAyash, 125 AD2d 226, 227 [1986]).
The Supreme Court improvidently exercised its discretion in granting that branch of thehusband's cross motion which was for an award of costs and the imposition of a sanctionpursuant to 22 NYCRR 130-1.1, to the extent of directing the wife to pay a sanction in the sumof $1,000 (see Wagner v Goldberg, 293 AD2d 527, 528 [2002]).
The wife's remaining contentions are without merit. Covello, J.P., Florio, Miller and Eng,JJ., concur.