In the Matter of Joseph M.
Gleason, et al.,
Appellants,
and
Michael Vee Ltd., et al.,
Respondents.
2001 NY Int. 52
In Matter of Solkav Solartechnik, G.m.b.H. v Besicorp
Group, Inc. (91 2 482), we held that when a pre-arbitration
special proceeding ends in a final judgment, a new proceeding
must be commenced to confirm an arbitration award, and we invited
the Legislature to amend CPLR 7502(a) if it intended otherwise.
The Legislature responded promptly with CPLR 7502(a) (iii), which
provides that: "Notwithstanding the entry of judgment, all
subsequent applications shall be made by motion in the special
The underlying dispute arises from respondents' 1994 sale of a Saratoga County restaurant to petitioners. In connection with the sale, respondents agreed not to engage in a competing restaurant business within five miles of their former place of business for a period of five years. The agreement also provided that all disputes arising out of the transaction would be resolved by arbitration and that the prevailing party would be entitled to attorneys' fees. Approximately one year after the sale, respondents Esther and Michael Viggiani informed petitioners that they intended to accept employment at a nearby restaurant, the Lodge, and provided assurances that the business was dissimilar, in terms of menu, dress code and price, to their former enterprise. The parties, however, failed to agree on the applicability of the covenant not to compete and respondents began working at the Lodge.
In August 1995, petitioners commenced a special
proceeding in Supreme Court seeking to enjoin respondents from
further employment at the Lodge pending arbitration of their
In August 1998, respondents sent a letter to Supreme Court citing Solartechnik and requesting dismissal of the application to confirm the arbitration award. Supreme Court denied respondents' request and confirmed the award. The Appellate Division reversed and dismissed the application in April 2000, prior to enactment of CPLR 7502(a) (iii).[1] We granted leave to appeal and now reverse.
In Solartechnik, we construed CPLR 7502(a) , in order to
determine whether an application to confirm an arbitration award
could be brought under the same index number as a pre-arbitration
proceeding that resulted in a final judgment. Reading CPLR 7502(a) to permit a confirmation application only within a
Legislative reaction was swift. At the next session, the Assembly introduced a bill to amend CPLR 7502(a) to require that all applications relating to an arbitration be brought within a single action or proceeding (1999 NY Assembly Bill A 5937). The Sponsor's Memorandum noted that the original purpose of CPLR 7502(a) was "to ensure that all applications concerning an arbitration [be] presented in the same case" and that the Solartechnik holding would "add[] costs and also present[] the opportunity to bring a second proceeding before a different judge, or even in a different county" (Mem of Assembly Member Mark S. Weprin, A 5937). In the words of the Sponsor, the "Court of Appeals recognizes this situation and has invited remedial legislation" (id.).
The bill passed both Houses of the Legislature but not
before the inclusion of language that would have exempted certain
automobile accident arbitrations from the "one proceeding"
requirement (1999 NY Senate-Assembly Bill S 3071A, A 5937A). The
Governor vetoed the bill, disapproving the special exemption.
This amendment, making subsequent arbitration-related applications within a prior pre-arbitration proceeding not only permissible but also mandatory, came weeks after the Appellate Division dismissed petitioners' application. Petitioners argue that the amendment should be applied retroactively. We agree.
In determining whether a statute should be given
retroactive effect, we have recognized two axioms of statutory
interpretation. Amendments are presumed to have prospective
application unless the Legislature's preference for retroactivity
In amending CPLR 7502(a) , the Legislature did not state
that it was to have retroactive effect. However, in two respects
it conveyed a sense of immediacy: it acted swiftly after
Solartechnik, and it directed that the amendment was to take
effect immediately, thus evincing "a sense of urgency" (Brothers
v Florence,
Petitioners' remaining arguments are without merit.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division for consideration of issues raised but not determined on appeal to that court.
1 We may consider this previously unraised question of law as to the retroactivity of CPLR 7502(a) (iii), which could not have been raised below as those proceedings predated the amendment (see, Matter of OnBank & Trust Co., , 90 NY2d 725).