Lehman Bros. v. Cox

[353] Order and judgment (one paper), Supreme Court, New York County (Marilyn Shafer, J.), entered April 13, 2006, which granted petitioner’s motion to vacate the portion of an arbitration award which awarded respondent $48,000 on his counterclaim, affirmed, without costs. The arbitrators awarded Lehman Brothers $122,000 for Cox’s margin debt plus interest. Given the necessary underlying determination that Lehman Brothers was entitled, as it had claimed from the outset, to the full claimed margin debt plus interest, and given this Court’s prior determination (see Cox v Lehman Bros., Inc., 15 AD3d 239 [2005]), the grant of Cox’s counterclaim was not within the arbitrators’ authority. It is established, as a matter of law, that Lehman Brothers had properly held the Borealis shares, had properly sold a portion of them to cover some of Cox’s margin calls, and properly continued to hold the remaining 81,700 shares as collateral. In affirming the rescission of the settlement agreement, this Court observed that doing so would restore the parties to “the status quo ante without prejudice,” and that there was no indication that the error Lehman Brothers made in drawing up that agreement was either in bad faith or intentional {id. at 239 [emphasis added]). Indeed, this Court remarked, in response to Cox’s complaints regarding the additional costs caused by the need for litigation, that he could have avoided litigation by accepting Lehman Brothers’ offer of the full amount of shares remaining, the correct number of which he was at all times fully aware from the statements of account he had been sent regularly. All of the foregoing issues were raised and addressed in the course of the prior litigation. Yet, Cox brought a new counterclaim in the arbitration that followed, asserting that: “9. Respondent has suffered damages as a result of Claimant’s failure to negotiate, in good faith and made material misstatements resulting in damages to Respondent. “10. Respondent has suffered damages as a result of Claimant’s unlawful possession of Respondent’s assets including but not limited to loss of interest on the assets, loss of investment opportunity, loss of capital and attorneys fees in excess of $100,000.” These allegations are contradicted, disproved, or preempted by determinations previously made. The claimed lack of good faith is contradicted by this Court’s prior ruling, as is the claimed “unlawful possession” of Cox’s assets; indeed, the portion of the award in favor of Lehman Brothers necessarily establishes that it did nothing unlawful in respect to Cox’s shares. The only claimed “misstatement” was the accidental [354] misstatement in the settlement agreement that Lehman Brothers would return 112,400 shares, when in fact only 81,700 shares remained in its possession. The only means by which this misstatement damaged Cox was that it necessitated the continued legal battle, since Cox was unwilling to accept the clearly intended terms of the settlement agreement, namely that he pay $60,000, and Lehman Brothers turn over all Cox’s shares of Borealis stock remaining in its possession. The dissent reasons that we, like the motion court before us, lack proof of exactly what evidence was before the arbitrators in support of Cox’s counterclaim. However, Lehman Brothers asserted in its petition, and asserts now, that the only evidence presented by Cox in support of his counterclaim was that related to the events of negotiating the settlement agreement. In his cross motion in opposition, Cox failed to point out anything to the contrary. Although he states in his reply brief that he raised before the arbitrators a claim of improper handling of his account, he provides not a single specific. Accordingly, contrary to the dissent’s position, it can be said that there was no evidentiary support for a viable claim by Cox separate and apart from the attempted settlement and the error in inserting in the draft agreement the number of shares remaining in Lehman Brothers’ possession. Cox failed to provide enough information to establish the existence of even a barely colorable justification for the counterclaim award. Nor do we believe that by moving before the NASD for dismissal of the counterclaim, based upon its transparent lack of validity, Lehman Brothers in any way waived the present argument. It is true that a party seeking to vacate an arbitration award is faced with a heavy burden (see CPLE, 7511 [b] [1]). But, upon a demonstration of a complete absence of any support, evidentiary or even theoretical, that burden is satisfied. Concur— Saxe, Gonzalez and Kavanagh, JJ.