Court Confirms Arbitration Award Against Respondent Who Failed to Check Her Mail
August 23, 2018
A recent decision out of the Suffolk County Commercial Division underscores the importance of staying on top of your mail if you plan on leaving New York for an extended period of time. Last week, in Matter of New Brunswick Theological Seminary v Van Dyke, 2018 NY Slip Op 51204(U), Justice Emerson confirmed a $3,229,097 arbitration award against a respondent who failed to appear at an arbitration, claiming she did not receive notice of the proceedings against her.
The respondent was a retired investment banker who, in 2000, entered into an agreement with petitioner to act as its investment advisor and broker. The respondent managed petitioner’s account until May 2016, when the petitioner terminated her services. Thereafter, the Financial Industry Regulatory Authority (“FINRA”) commenced an investigation against respondent in connection with her alleged mishandling of certain customer accounts, including petitioner’s account. The investigation ultimately concluded with respondent being permanently barred from the securities industry.
Petitioner proceeded to arbitrate its claims against the respondent. Between July and October of 2017, FINRA sent to the respondent several notices regarding the arbitration at the addresses the respondent provided FINRA for service of process. One notice, sent by certified mail to the respondent’s home addresses in New York City and Sag Harbor, was returned as “unclaimed, unable to forward.” But the other notices, sent to the same two addresses, were not returned.
The respondent did not appear at the arbitration. Nevertheless, the arbitrator determined that, since the respondent had been served with several notices by regular mail and by certified mail, she would be bound by the arbitrator’s ruling and determination, which ultimately awarded petitioner $3,229,097.00, with interest. Thereafter, the petitioner commenced a proceeding to confirm the arbitrator’s award, and the respondent cross-moved to vacate the award, arguing that: (1) the arbitrator erred in finding that service had been effected, (2) respondent had been deprived of due process, and (3) it would be fundamentally unfair to confirm the arbitration award under the circumstances.
According to the respondent, she had been in California for five months and did not receive notice of the arbitration until January 19, 2018, when she was served with the petition and arbitration award at her home in Sag Harbor. She claimed that, while in California, the mail sent to her Sag Harbor address was held at the Post Office, and the mail sent to her New York City address was de minimus enough to fit into the mailbox, and remained there until she returned to New York. Respondent further claimed that, upon returning to New York, she did not “prioritize going through the months of held mail and that she was still going through it when she was served with the petition and arbitration award on January 19, 2018” and that petitioner should have attempted to advise her of the arbitration through email.
Justice Emerson declined to vacate the arbitration award, holding that the respondent was not deprived of due process. First, Justice Emerson found that the respondent knew, or should have known, that the petitioner might proceed to arbitration while she was in California. Indeed, the respondent was a seasoned investment banker and broker who knew that FINRA had opened an investigation concerning her mishandling of petitioner’s account, and that that investigation concluded with respondent being permanently barred from the securities industry. According to Justice Emerson, respondent should have expected that petitioner would pursue its arbitral remedies against her and yet, “the respondent left for California for five months without advising FINRA of her address in California and without forwarding her mail.”
Next, Justice Emerson noted the respondent’s continued obligation to maintain and update her address with FINRA for service of process, even though she was permanently barred from the securities industry. Because the respondent failed to do so, FINRA was left with no choice but to serve respondent at the addresses it had on file for service of process. Accordingly, the Court found that, under the Court of Appeals’ holding in Beckman v Greentree Securities, Inc., 87 NY2d 568, 570 (1996), the notices were “reasonably calculated to apprise the respondent of the pendency of the arbitration and to afford her an opportunity to present her objections.” And so, even though one of the notices was returned as “unclaimed,” additional mailings were sent to the same two addresses, none of which were returned.
Last, the Court found that the respondent “made no effort to ensure that she received mail from FINRA while in California, although she knew or should have known that petitioner might proceed to arbitration.” Specifically, the respondent “failed to provide FINRA with her address in California, as required, and failed to have her mail forwarded.” Indeed, there was correspondence from FINRA waiting for respondent when she eventually came back to New York, which respondent also ignored. Under these circumstances, the Court found that “a strong inference may be drawn that the respondent was attempting to avoid receiving any mail from FINRA and that she ignored the mail that was received.”