Respondent Yiddy Wertzberger seeks an order, inter alia, granting him leave to reargue this court's decision and order dated May 30, 2013, and upon granting such leave, vacating the same. Petitioner opposes.

I.Procedural Background

Previously, petitioner moved by verified petition pursuant to CPLR 7510 and CPLR 7514 to confirm an arbitration award, dated September 20, 2012, issued by the Rabbinical Court of Mechon L'Hoyroa (the Beth Din). The parties' dispute, which they agreed to arbitrate before the Beth Din, related to two separate loans, for $400,000 and $100,000, respectively, that petitioner made to Wertzberger and which Wertzberger allegedly failed to pay back.^[FN1] On June 20, 2012, the Beth Din issued a Rabbinical Court Ruling, awarding petitioner $493,000. The ruling provided, in relevant part, that:

"[a]fter hearing the arguments of the parties and their evidence, an analysis of their statements and deliberations amongst us, the following Rabbinical Court Ruling was issued by us:

1.[Wertzberger (on his own behalf and on behalf of Royal Trading and Royal Water)] is required to pay the amount $493,000; and after he pays this amount the Rabbinical Court will consider how much he still owes for the principal and interest."

Subsequent to this ruling, Wertzberger asked the Beth Din for the opportunity to provide additional information and arguments. The request was granted and the Beth Din convened again and heard additional testimony. After considering the additional evidence and arguments introduced by Wertzberger, the Beth Din, on September 20, 2012, issued a second Rabbinical Court Ruling: (i) confirming the June 20, 2012 ruling and the Beth Din's prior award to petitioner; (ii) stating that the award was a personal obligation; and (iii) specifically authorizing petitioner to confirm the arbitration award and to have judgment entered. See reply affirmation of Reuven J. Epstein, dated August 19, 2013 (Epstein aff.), Ex. B.

In light of this ruling, petitioner made an application to this court to have the arbitration award confirmed. Wertzberger opposed the application, arguing, among other things, that the award was incomplete and non-final because the Beth Din has left the case open for a future determination as to the amount of principal and interest still owed to petitioner, and therefore, the award did not fully resolve the submitted dispute. As a result, Wertzberger argued that the award could not be confirmed, pursuant to CPLR 7511(b)(1)(iii).

In its May 30, 2013 decision and order, this court found that:

"... in the case at bar, the Beth Din's arbitration award does not purport to be a final decision as to any one claim or party.

As it stands, given that the principal amount borrowed was $500,000 and the award was for $493,000, the court cannot discern whether the amount awarded was a determination only as to what was owed by Werzberger under the March 16, 2010 contract (for the principal amount of $400,000), leaving the only issue left to be resolved by the Beth Din the amount still owed under the October 19, 2010 contract (for the principal amount of $100,000) — or, whether the award represented a determination of the minimum amount owed under both contracts, leaving for a later determination the total amount owed under the contracts. Should the former be the case, the award could be said to have fully and finally resolved a separate and independent claim (i.e., the amounts owed under the March 16, 2013 contract) and could be confirmed as a final interim award . . . On the other hand, if the latter is what occurred, the award, which leaves for a future date a final determination by the Beth Din as to what additional amounts, including principal, are owed under both contracts, does not fully resolve the parties' claims, and is non-final."



See Wertzberger aff., Ex. F (May 30, 2013 decision and order), at 9.

However, recognizing that petitioner could have, as part of his application, waived his [*3]right to further proceedings before the arbitration panel, thus, converting the award into a full and final resolution of all the claims, the court stated that:

"... [it] will confirm the award, if, within 30 days of the date of this decision, petitioner accepts the amount awarded by the Beth Din in full settlement of all of his claims against respondents and stipulates accordingly. Upon submission of such stipulation, the court will grant the instant petition and confirm the award."

If, however, petitioner refused to waive his right to further proceedings before the Beth Din, the court ordered that "the matter is remitted to the [arbitration panel] for a final ruling," resolving all claims submitted to it by the parties. Id.

In addition, the court dismissed Wertzberger's claim that the Beth Din had exceeded its authority by imposing liability on respondent Royal Water Marketing Company, LLC (Royal Water), because, as the court determined, Royal Water was a signatory to the arbitration agreement. Id., at 7. In reaching this conclusion, the court relied on documentary evidence in the form of an arbitration agreement written in Hebrew, which Wertzberger had signed on behalf of Royal Water. Id. The court rejected Wertzberger's argument that he did not know what he was signing when he signed that document because it was written in a language he was not familiar with, based on well-established law that a signer is responsible for his signature and is bound to read and know what he signed. Id.^[FN2]

The court also noted that Wertzberger did not, at the time, raise any objection to the Hebrew version of the arbitration agreement once he understood, from his reading of a corresponding English version, that he was signing (or had already signed), a binding agreement to arbitrate on behalf of Royal Water. Consequently, based both on the law and the evidence, the court concluded that the Beth Din did not exceed its authority by imposing liability on Royal Water.

By stipulation dated July 1, 2013, petitioner agreed to accept the amount of $493,000

awarded by the Beth Din in full settlement of all of his claims against respondents. See

Wertzberger aff., Ex. G. By order dated July 8, 2103, the court granted petitioner's motion to

confirm the September 20, 2012 arbitration award. See Epstein aff., Ex. D.

II.Discussion

Wertzberger presents two grounds for reargument. First, Wertzberger contends that the court misapprehended the law because it was without authority to accept a stipulation that [*4]effectively turned an interim award into a final binding award while the matter was still pending before an arbitration panel. Second, Wertzberger argues that, to the extent the court ruled that the Beth Din properly imposed liability on respondent Royal Water because that entity was a signatory to a Hebrew version of the arbitration agreement — such document should be disregarded because petitioner did not provide the court with a certified English translation, pursuant to CPLR 2101(b).

A motion to reargue affords a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law (CPLR 2221 [d] [2]), and is a "procedural avenue . . . available which allow[s] an . . . attorney to correct an . . . error without resort to an unnecessary appeal." Kent v Kent, 29 AD3d 123, 130 (1st Dept 2006). A motion to reargue is not designed to provide an opportunity for a party to advance arguments different from those originally tendered (see Amato v Lord & Taylor, Inc., 10 AD3d 374, 375 [2d Dept 2004]), argue a new theory of law, or raise new questions not previously advanced. Frisenda v X Large Enters., 280 AD2d 514, 515 (2d Dept 2001). Instead, a movant must demonstrate the matters of fact or law that it believes the court has misapprehended or overlooked. See Hoffmann v Debello-Teheny, 27 AD3d 743, 743 (2d Dept 2006).

In the instant case, the court did not misapprehend the facts or misapply the law when it provided petitioner with the option of accepting the September 20, 2012 arbitration award as a final ruling or face denial of his application. As indicated earlier, any defect in the finality of the award could have been cured at the outset by petitioner had he, in his petition to confirm, voluntarily relinquished his right to return to the Beth Din for further proceedings. The court simply gave petitioner the opportunity to exercise that right by accepting the amount already awarded by the Beth Din in full satisfaction of his claims, and if he refused, the matter was remitted to the Beth Din for a final ruling that resolved all of the claims submitted to it by the parties. In light of petitioner's July 1, 2013 stipulation, however, remitting the case to the Beth Din for a final determination of all of petitioner's claims, would be nothing more than a hollow exercise as the award had already been made final by dint of petitioner's waiver — which, in the court's view, was always in petitioner's power to effect, even at the point when he first moved to confirm the award. Consequently, this branch of Wertzberger's motion to reargue, is denied.^[FN3]

That part of Wertzberger's motion to reargue the court's finding that respondent Royal Water was a signatory to the arbitration agreement, and therefore, was properly held liable by the Beth Din, must also be denied. Wertzberger is raising a new argument that was not advanced by him in his opposition (or his supplemental opposition) to the underlying motion to confirm. As such, this argument (i.e., that petitioner failed to provide a certified translation of the arbitration agreement) cannot serve as the basis of a motion to reargue. See Frisenda v X Large Enters., 280 AD2d at 515 (reargument is not available where the movant seeks only to "argue a new theory of law not previously advanced"). Consequently, this branch of Wertzberger's motion is denied as well.

Accordingly, the instant motion is denied in all respects. [*5]

The forgoing is the decision and order of the court.



Dated: November 21, 2013

ENTER:

_______________________

J.S.C.