| Matter of Metropolitan Transp. Auth. v Westfield Fulton Ctr., LLC |
| 2022 NY Slip Op 02875 [204 AD3d 610] |
| April 28, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Metropolitan Transportation Authority et al.,
Appellants, v Westfield Fulton Center, LLC, Respondent. |
[Recalled and vacated, see 2022 NY Slip Op 05008.]
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for appellants.
Blank Rome LLP, New York (Harris N. Cogan of counsel), for respondent.
Judgment, Supreme Court, New York County (Joel M. Cohen, J.), entered May 7, 2021, dismissing petitioners Metropolitan Transportation Authority and New York City Transit Authority's (together, MTA) petition for a stay of arbitration, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 23, 2021, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Supreme Court correctly reached the issue of whether the claims asserted by respondent Westfield Fulton Center, LLC came within the scope of the arbitration provisions in the parties' lease. Although there are several provisions in the lease directing that the parties arbitrate specific substantive disputes, including section 3.1 upon which Westfield relies, there are no provisions stating "clearly and unmistakably" that the question of arbitrability is to be decided by the arbitrator (Zachariou v Manios, 68 AD3d 539, 539 [1st Dept 2009]).
The court correctly dismissed MTA's petition to stay the arbitration. Section 3.1 of the lease provides that related claims that may not squarely fit into the definition of substantial or final completion are nonetheless covered by the lease's broad arbitration provision. Thus, even if some of the relief requested in the arbitration appears to fall outside the narrow arbitration clause, that alone is not a basis to stay the arbitration as long as "the fashioning of some relief on the issue sought to be arbitrated remains within the arbitrator's power" (Zachariou, 68 AD3d at 540 [internal quotation marks omitted]). This includes Westfield's request for attorneys' fees under section 23.1 of the lease, should it ultimately prevail at arbitration. Concur—Acosta, P.J., Manzanet-Daniels, Mazzarelli, Singh, González, JJ. [Prior Case History: 2021 NY Slip Op 31367(U).]