Osbeck v. Westcon, Inc.

—In a proceeding pursuant to CPLR 7510 to confirm an arbitrator’s award of an attorney’s fee, the petitioner appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered September 12, 2000, which denied the petition, dismissed the proceeding, and granted the respondents’ cross petition pursuant to CPLR 7511 to vacate the arbitrator’s award of an attorney’s fee. Ordered that the order is affirmed, with costs. We affirm the order vacating the arbitration award for reasons other than those asserted by the Supreme Court. The determination of the Supreme Court was based upon its interpretation of contract provisions and its determination that the arbitrator’s findings were insufficient. Such reasoning, which “second-guesses” the factual findings and legal conclusions of the arbitrator, was improper (see, Matter of Troy Police Benevolent & Protective Assn. [City of Troy], 271 AD2d 926; Ingber v Statewide Ins. Co., 97 AD2d 397). However, it is apparent from the record that the arbitrator exceeded his authority (see, CPLR 7511 [b] [1] [iii]), by not affording the respondents an opportunity to be heard. Accordingly, the award was properly set aside (see, Matter of Dandy Dan Taxi v Insurance Co., 155 AD2d 458). O’Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.