3 No. 65
In the Matter of Joseph M. Gleason, et al.,
Appellants, and Michael Vee Ltd., et al.,
Respondents.
_________________________________________________________________
2001 NY Int. 52
May 1, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Kelly L. Munkwitz, for appellants.
Carl Rosenbloom, for respondents.
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CIPARICK, J.:
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 proceeding or action in which the first application was
made." This appeal presents the issue of how to treat an application
to confirm an arbitration award that was dismissed for failure to
commence a new proceeding in the interval between Solartechnik and the
amendment to CPLR 7502(a) . We conclude that the amendment should
be applied retroactively and the order of the Appellate Division
dismissing the petition reversed.
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
SNIPPETS:
Carl Rosenbloom, for respondents.
In Matter of Solkav Solartechnik,
v Besicorp Group, Inc., we held that when a pre-arbitration special proceeding ends in a
This appeal presents the issue of how to treat an application to confirm an arbitration award
We conclude that the amendment should be applied retroactively and the order of the Appellate
The underlying dispute arises from respondents' 1994 sale of a Saratoga County restaurant to
respondents agreed not to engage in a competing restaurant business within five miles of
The parties, however, failed to agree on the applicability of the covenant not to compete and
petitioners commenced a special proceeding in Supreme Court seeking to enjoin respondents
By order dated August 23, 1995, Supreme Court denied petitioners' request for injunctive
The Appellate Division reversed and dismissed the application in April 2000, prior to
In Solartechnik, we construed CPLR 7502, in order to determine whether an application to
the Assembly introduced a bill to amend CPLR 7502to require that all applications relating to
In the words of the Sponsor, the "Court of Appeals recognizes this situation and has invited
In determining whether a statute should be given retroactive effect, we have recognized two
Amendments are presumed to have prospective application unless the Legislature's preference
However, remedial legislation should be given retroactive effect in order to effectuate its
Opinion by Judge Ciparick.
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