| Matter of Braver v Silberman |
| 2011 NY Slip Op 08939 [90 AD3d 654] |
| December 6, 2011 |
| Appellate Division, Second Department |
| In the Matter of Shaya Braver, Respondent, v TzviElimelech Silberman, Also Known as Herman Silberman, Individually and Acting for YeshivaShearith Hapleta and Others, Appellant. |
—[*1] Goldberg & Rimberg, PLLC, New York, N.Y. (Israel Goldberg and Brad Coven of counsel),for respondent.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated December18, 2008, Tzvi Elimelech Silberman, also known as Herman Silberman, etc., appeals, (1) aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson,J.), dated January 7, 2010, as, in effect, denied that branch of his motion which was to vacate theaward, and (2) from an order of the same court dated October 8, 2010, which denied his motionfor leave to reargue and renew that branch of his prior motion which was to vacate the award.
Ordered that the appeal from the order dated October 8, 2010, is dismissed; and it is further,
Ordered that the order dated January 7, 2010, is reversed insofar as appealed from, on thelaw, and that branch of the defendant's motion which was to vacate the arbitration award isgranted; and it is further,
Ordered that one bill of costs is awarded to the appellant.
In August 2000, the petitioner began residing in an apartment located on Wallabout Street inBrooklyn (hereinafter the Wallabout Property). At that time, the building was owned by YeshivaShearith Hapleta (hereinafter Hapleta). While residing in the apartment, the petitioner received arental subsidy through the federal Section 8 housing assistance payment program (see 42USC § 1437f [hereinafter Section 8 program]), which was administered at the local levelby the New York City Housing Authority. On November 28, 2005, the petitioner and TziElimelech Silberman, also known as Herman Silberman (hereinafter the appellant), individually,and on behalf of Hapleta and Beth Chana (the developers), apparently as an officer of thoseentities, entered into an agreement with the petitioner to arbitrate a dispute regarding theownership of the subject apartment before a rabbinical court. The petitioner claimed that he hadpurchased the apartment, while the appellant maintained that the petitioner was a tenant of theapartment, not an owner. Approximately 10 months before the arbitration agreement was signed,however, the Wallabout Property had been transferred to nonparty Yeshiva Beis Leivy, Inc.(hereinafter Leivy).[*2]
On December 18, 2008, the rabbinical court issued itsaward, finding that the petitioner had purchased the apartment. The rabbinical court awardedpossession of the apartment to the petitioner's successor in interest, and awarded to the petitioner,inter alia, "[a]ll the monies that were received by the [appellant] as rent, from whatever sources."Thereafter, the petitioner commenced this proceeding to confirm the arbitration award, and theappellant moved, among other things, to vacate the award. In an order dated January 7, 2010,insofar as relevant to this appeal, the Supreme Court, in effect, denied that branch of theappellant's motion which was to vacate the award. We reverse that order insofar as appealedfrom.
"An arbitration award may not be vacated unless it violates a strong public policy, isirrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power"(Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn.,78 NY2d 33, 37 [1991]; see Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCESStaff Assn., 308 AD2d 452, 453 [2003]).
Here, the rabbinical court exceeded its authority in awarding an ownership interest in theWallabout Property, which is owned by nonparty Leivy, to the petitioner's successor in interest.Leivy was not a party to the arbitration agreement, and there is no evidence that Leivy agreed tobe bound by the rabbinical court's determination (see TNS Holdings v MKI Sec. Corp.,92 NY2d 335, 339 [1998]; Matter of Waldron [Goddess], 61 NY2d 181, 183 [1984]), orthat Leivy was an "alter ego" of the appellant (see TNS Holdings v MKI Sec. Corp., 92NY2d at 339).
The arbitration award also violates public policy. The petitioner failed to comply with certainrules specified in 24 CFR 982.551, which sets forth the requirements for eligibility in the Section8 program, including the requirement that the recipient not own or have any interest in theapartment for which the subsidy is issued (see 24 CFR 982.551 [j]). The portion of theaward returning to the petitioner Section 8 program funds paid on his behalf violates publicpolicy since the petitioner claims to own the apartment while receiving those funds. Thus, theaward rewards the petitioner for perpetrating a fraud in connection with the Section 8 program inviolation of 24 CFR 982.551 (k).
Accordingly, that branch of the appellant's motion which was to vacate the arbitration awardshould have been granted.
The appeal from so much of the order dated October 8, 2010, as denied that branch of thedefendant's motion which was for leave to reargue must be dismissed, as no appeal lies from anorder denying reargument (see Barany vBarany, 71 AD3d 613 [2010]). The appeal from so much of the order dated October 8,2010, as denied that branch of the defendant's motion which was for leave to renew must bedismissed as academic in light of our determination on the appeal from the order dated January 7,2010.
In light of our determination, we need not reach the appellant's remaining contentions.Skelos, J.P., Hall, Lott and Roman, JJ., concur.
Motion by the respondent on appeals from two orders of the Supreme Court, KingsCounty, dated January 7, 2010, and October 8, 2010, respectively, inter alia, to dismiss the appealfrom the order dated October 8, 2010, on the ground that no appeal lies from an order denyingreargument. By decision and order on motion of this Court dated March 31, 2011, that branch ofthe motion was held in abeyance and was referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission of the appeals.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeals, it is
Ordered that the motion is denied as academic. Skelos, J.P., Hall, Lott and Roman, JJ.,concur.