In April 2000, Petitioner, Silverlining Interiors, Inc., and Respondents, Christopher J. Carroll and Lea C. Carroll, entered into a contract in which Petitioner, a general construction contractor, agreed to renovate Respondents' home located at 1120 Fifth Avenue. The contract price was set at $1, 096, 687.

Substantial disputes arose between the parties resulting in the Petitioner's commencement of an arbitration under the rules of the American Arbitration Association (AAA). Petitioner alleged damages of $330, 174.00 and the Respondents counter-claimed for damages in the amount of $565, 000, plus one million dollars for punitive damages. Arbitration hearings took place before Arbitrator Phillip S. Inglis over 25 hearing days between January 21, 2003 and July 31, 2003. Petitioner called four witnesses and the Respondents called ten witnesses. A significant number of hearing exhibits were offered and received in evidence. The parties also submitted post-hearing briefs which included a summary of damages claims.

On November 24, 2003, the arbitrator awarded Petitioner $328, 420 of contract damages, $50, 334 of interest, $35, 848 in attorneys' fees and $20, 040.36 in administrative costs to the AAA. On December 16, 2003, Petitioner brought a motion to confirm the award. Respondents cross-moved to vacate or modify the arbitrator's determination pursuant to CPLR § 7511 [c][1].

Respondents contend that the arbitrator grossly miscalculated material components of the [*2]award and that the award should be reduced by $274, 527. They allege that the arbitrator failed to calculate in his award reductions in the scope of work, or give credit for payments made to the contractor. As well, the Respondents allege a bias against them on the part of the arbitrator. Specifically, they contend that they were denied a stenographer and an expert witness on the issue of the law of fraud. Respondents also assert that Petitioner was not entitled to attorneys'fees and costs.

CPLR § 7511 [c][1] can only be used to modify arbitration awards where there is a mathematical miscalculation of figures, but it may not be the basis for challenging the actual award. Dahlke v X-L-O Automotive Accessories, Inc., 40 AD2d 666 [1st Dept 1972]; Wolff & Munier, Inc. v Diesel Constr.Co., 41 AD2d 618 [1st Dept], on remand 44 AD2d 530 [1974], affd 36 NY2d 750 [1975]; Matter of City of Troy v Village of Menands, 48 AD2d 733 [3d Dept 1975]. Here, the Respondents challenge the figures the arbitrator used when exercising his judgment in choosing what figures to use, not a mathematical error that is apparent from the face of the award. A claim that the award fails to reflect the Respondents' position as to what the figure should be is not the same as a "miscalculation of figures." See Matter of Bay Ridge Med. Group v Health Ins. Plan of Greater N.Y., 22 AD2d 807 [2d Dept 1964]; Matter of Ververs & Schueller Co. v Emory Mach. and Tool Co., 190 AD2d 1079 [4th Dept 1993]. Thus, the Respondents are not entitled to modification pursuant to CPLR § 7511 [c][1].

Similarly, in the absence of proof of fraud, corruption or other misconduct, the arbitrator's decisions on issues of law, as well as of fact, are conclusive. See Matter of Silverman v Benmor Coats, Inc., 61 NY2d 299, 308 [1984]. "He may do justice as he sees it, applying his own sense of justice and equity to the facts as he finds them to be." id. The record is clear that the Respondents had adequate opportunity to present ample evidence to the arbitrator to enable him to make a determination. Finally, the recovery of attorneys' fees and arbitration costs is not precluded by any provision of the parties' contract.

Because the Respondents have failed to establish that the arbitrator did not satisfy his obligations to investigate and determine contract damages, the final award remains unchanged.

Accordingly, Petitioner's motion to confirm the award is granted, and the Respondents' motion to vacate or modify the award is denied.

Dated: June 4, 2004

ENTER:

James A. Yates, J.S.C.