Banc of America Securities, LLC v. Solow Building Co. II, LLC

Judgment, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered May 1, 2012, awarding plaintiff the total amount of $6,670,547.95, pursuant to an order, same court and Justice, entered March 7, 2012, which granted plaintiffs motion to confirm an arbitration award dated October 11, 2011, and denied defendant’s cross motion to vacate the award, unanimously affirmed, with costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The arbitrator’s construction of the term “remain,” found in a schedule to the parties’ settlement agreement, as meaning simply to remain physically in place, and not necessarily unchanged, was not irrational (see Maross Constr. v Central N.Y. Regional Transp. Auth., 66 NY2d 341, 346 [1985]). Nor was the arbitrator’s finding that plaintiff did not cut any backbone cabling, as it was based on plausible credibility determinations (see Kalyanaram v New York Inst. of Tech., 79 AD3d 418, 419-420 [1st Dept 2010], lv denied 17 NY3d 712 [2011]; Matter of Haynes v New York City Dept. of Homeless Servs., 27 AD3d 330, 332 [1st Dept 2006]). Concur — Sweeny, J.E, Acosta, Román, Feinman and Clark, JJ.