On April 13, 2022, the Second Department issued a decision in Matter of Paluch v. Kohn, 2022 NY Slip Op. 02416, affirming the vacatur of an arbitral award because of the arbitrator’s ex parte communications, explaining:
[T]he Supreme Court properly denied the petition to confirm the arbitration award and granted the respondents’ cross motion to vacate the arbitration award. CPLR 7511 provides in pertinent part that an arbitration award shall be vacated if the court finds that the rights of the complaining party were prejudiced by corruption, fraud, or misconduct in procuring the award. A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence.
Here, the respondents established by clear and convincing evidence that the arbitrator committed misconduct and that such misconduct prejudiced their rights or the integrity of the arbitration process. In support of their cross motion, the respondents submitted, inter alia, an affirmation of the arbitrator in which he averred that almost a year after the end of the arbitration proceeding, he received information from the petitioner and others speaking for the petitioner concerning the work that was the subject of the arbitration, and based on this information, the arbitrator decided to render the award at issue without first providing the respondents an opportunity to respond to the information. The arbitrator’s admitted consideration of evidence received from one party, without providing the other party the opportunity to respond, along with evidence in the record of ex parte communications, established by clear and convincing evidence that the arbitrator committed prejudicial misconduct.
(Internal quotations and citations omitted).