On August 23, 2023 a
Exhibit,Appendix
was filed
involving a dispute between
Jan S. Wimpfheimer,
Simche Daniel Fulda,
and
East Hudson Capital Llc,
for Special Proceeding - Other - Commercial Division (CPLR ARTICLE 75)
in the District Court of Queens County.
Preview
FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/24/2023
Commercial
Arbitration Rules and Mediation Procedures
Including Procedures for Large, Complex Commercial Disputes
Available online at adr.org/commercial
Rules Amended and Effective September 1, 2022
Rules Amended and Effective September 1, 2022. COMMERCIAL RULES 1
FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/24/2023
amount involved. The filing fee as specified in the applicable AAA Fee Schedule
must be paid at the time of filing. The claimant may file an answering statement
or reply in response to the counterclaim with the AAA within 14 calendar days
after notice of the filing of the counterclaim is sent by the AAA.
(c) If the respondent alleges that a different arbitration provision is controlling, the
matter will be administered in accordance with the arbitration provision submitted
by the initiating party subject to a final determination by the arbitrator.
(d) If the counterclaim does not meet the requirements for filing a claim and the
deficiency is not cured by the date specified by the AAA, it may be returned to the
filing party.
R-6. Changes of Claim
(a) A party may at any time prior to the close of the hearing or by any earlier date
established by the arbitrator increase or decrease the amount of its claim or
counterclaim. Written notice of the change of claim amount must be provided
to the AAA and all parties. If the change of claim amount results in an increase in
the administrative fee, the balance of the fee is due before the change of claim
or counterclaim amount may be accepted by the arbitrator. After the arbitrator is
appointed, however, a party may increase the amount of its claim or counterclaim,
or alter its request for non-monetary relief, only with the arbitrator’s consent.
(b) Any new or different claim or counterclaim, as opposed to an increase or decrease
in the amount of a pending claim or counterclaim, shall be made in writing and
filed with the AAA, and a copy shall be provided to the other party, who shall have
14 calendar days from the date of such transmittal within which to file an answer to
the proposed change of claim or counterclaim with the AAA. After the arbitrator is
appointed, however, no new or different claim or counterclaim may be submitted
except with the arbitrator’s consent.
(c) A party that filed a claim or counterclaim of an undisclosed or undetermined
amount must specify the amount of the claim or counterclaim to the AAA, all
parties, and the arbitrator at least seven calendar days prior to the commencement
of the hearing or by any other date established by the arbitrator. If the disclosed
amount of the claim or counterclaim results in an increased filing fee, that fee
must be paid at the time the claim or counterclaim amount is disclosed. For good
cause shown and with the consent of the arbitrator, a party may proceed to the
hearing with an undisclosed or undetermined claim or counterclaim, provided that
the final amount of the claim or counterclaim is set forth in a post-hearing brief or
submission and any appropriate filing fee is paid.
R-7. Jurisdiction
(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including
any objections with respect to the existence, scope, or validity of the arbitration
agreement or to the arbitrability of any claim or counterclaim, without any need to
refer such matters first to a court.
14 RULES AND MEDIATION PROCEDURES American Arbitration Association
FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/24/2023
(b) The arbitrator shall have the power to determine the existence or validity of a
contract of which an arbitration clause forms a part. Such an arbitration clause
shall be treated as an agreement independent of the other terms of the contract.
A decision by the arbitrator that the contract is null and void shall not for that
reason alone render invalid the arbitration clause.
(c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a
claim or counterclaim no later than the filing of the answering statement to the
claim or counterclaim that gives rise to the objection. The arbitrator may rule on
such objections as a preliminary matter or as part of the final award.
R-8. Consolidation and Joinder
(a) Consolidation
i) Two or more arbitrations may be consolidated if all parties to all of the
arbitrations to be consolidated so agree.
ii) Unless all parties agree to consolidation, the party requesting consolidation
of two or more arbitrations must file with the AAA and serve on all other
parties a written request for consolidation with the supporting reasons for
such request within 90 days of the date the AAA determines that all
administrative filing requirements were satisfied for the last-filed case that is
part of the consolidation request. Such time limit may be extended by the
arbitrator appointed in the first-filed case upon a showing of good cause for
the late request. The other parties to the arbitrations shall provide their
written responses to the consolidation request within 10 calendar days after
the AAA sends notice of receipt of the request.
iii) At its discretion, the AAA either may direct that the consolidation request be
decided by the arbitrator appointed in the first-filed case or may appoint a
consolidation arbitrator for the sole purpose of deciding the consolidation
request.
iv) The arbitrator deciding consolidation may order consolidation of two or more
cases for all purposes or for such limited purposes and under such conditions
as the arbitrator may direct.
v) Absent agreement of all parties, an arbitrator appointed for the sole purpose
of deciding the consolidation request shall have no further power to act, and
shall be removed from the case, after the consolidation request is decided.
vi) In deciding whether to consolidate, the arbitrator or consolidation arbitrator
shall take into account all relevant circumstances, including:
a) the terms and compatibility of the agreements to arbitrate,
b) applicable law,
c) the timeliness of the request to consolidate and the progress already
made in the arbitrations,
d) whether the arbitrations raise common issues of law and/or fact, and
Rules Amended and Effective September 1, 2022. COMMERCIAL RULES 15
Document Filed Date
August 24, 2023
Case Filing Date
August 23, 2023
Category
Special Proceeding - Other - Commercial Division (CPLR ARTICLE 75)
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FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/24/2023 Commercial Arbitration Rules and Mediation Procedures Including Procedures for Large, Complex Commercial Disputes Available online at adr.org/commercial Rules Amended and Effective September 1, 2022 Rules Amended and Effective September 1, 2022. COMMERCIAL RULES 1 FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/24/2023 amount involved. The filing fee as specified in the applicable AAA Fee Schedule must be paid at the time of filing. The claimant may file an answering statement or reply in response to the counterclaim with the AAA within 14 calendar days after notice of the filing of the counterclaim is sent by the AAA. (c) If the respondent alleges that a different arbitration provision is controlling, the matter will be administered in accordance with the arbitration provision submitted by the initiating party subject to a final determination by the arbitrator. (d) If the counterclaim does not meet the requirements for filing a claim and the deficiency is not cured by the date specified by the AAA, it may be returned to the filing party. R-6. Changes of Claim (a) A party may at any time prior to the close of the hearing or by any earlier date established by the arbitrator increase or decrease the amount of its claim or counterclaim. Written notice of the change of claim amount must be provided to the AAA and all parties. If the change of claim amount results in an increase in the administrative fee, the balance of the fee is due before the change of claim or counterclaim amount may be accepted by the arbitrator. After the arbitrator is appointed, however, a party may increase the amount of its claim or counterclaim, or alter its request for non-monetary relief, only with the arbitrator’s consent. (b) Any new or different claim or counterclaim, as opposed to an increase or decrease in the amount of a pending claim or counterclaim, shall be made in writing and filed with the AAA, and a copy shall be provided to the other party, who shall have 14 calendar days from the date of such transmittal within which to file an answer to the proposed change of claim or counterclaim with the AAA. After the arbitrator is appointed, however, no new or different claim or counterclaim may be submitted except with the arbitrator’s consent. (c) A party that filed a claim or counterclaim of an undisclosed or undetermined amount must specify the amount of the claim or counterclaim to the AAA, all parties, and the arbitrator at least seven calendar days prior to the commencement of the hearing or by any other date established by the arbitrator. If the disclosed amount of the claim or counterclaim results in an increased filing fee, that fee must be paid at the time the claim or counterclaim amount is disclosed. For good cause shown and with the consent of the arbitrator, a party may proceed to the hearing with an undisclosed or undetermined claim or counterclaim, provided that the final amount of the claim or counterclaim is set forth in a post-hearing brief or submission and any appropriate filing fee is paid. R-7. Jurisdiction (a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim, without any need to refer such matters first to a court. 14 RULES AND MEDIATION PROCEDURES American Arbitration Association FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/24/2023 (b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause. (c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award. R-8. Consolidation and Joinder (a) Consolidation i) Two or more arbitrations may be consolidated if all parties to all of the arbitrations to be consolidated so agree. ii) Unless all parties agree to consolidation, the party requesting consolidation of two or more arbitrations must file with the AAA and serve on all other parties a written request for consolidation with the supporting reasons for such request within 90 days of the date the AAA determines that all administrative filing requirements were satisfied for the last-filed case that is part of the consolidation request. Such time limit may be extended by the arbitrator appointed in the first-filed case upon a showing of good cause for the late request. The other parties to the arbitrations shall provide their written responses to the consolidation request within 10 calendar days after the AAA sends notice of receipt of the request. iii) At its discretion, the AAA either may direct that the consolidation request be decided by the arbitrator appointed in the first-filed case or may appoint a consolidation arbitrator for the sole purpose of deciding the consolidation request. iv) The arbitrator deciding consolidation may order consolidation of two or more cases for all purposes or for such limited purposes and under such conditions as the arbitrator may direct. v) Absent agreement of all parties, an arbitrator appointed for the sole purpose of deciding the consolidation request shall have no further power to act, and shall be removed from the case, after the consolidation request is decided. vi) In deciding whether to consolidate, the arbitrator or consolidation arbitrator shall take into account all relevant circumstances, including: a) the terms and compatibility of the agreements to arbitrate, b) applicable law, c) the timeliness of the request to consolidate and the progress already made in the arbitrations, d) whether the arbitrations raise common issues of law and/or fact, and Rules Amended and Effective September 1, 2022. COMMERCIAL RULES 15