SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS In the Matter of the Application of PALACE FOODS, LLC, Petitioner, For a Judgment Pursuant to CPLR Article 75, Vacating a Final Arbitration Award dated June 2, 2017, Index No. VERIFIED PETITION TO VACATE ARBITRATION AWARD against FIBER GOURMET, INC., MAUZONE MANIA, LLC and DAVID FRIED, Respondents. Petitioner Palace Foods, LLC by its attorneys The Silber Law Firm, LLC, for its Verified Petition, states and alleges as follows: 1. Petitioner Palace Foods, LLC is a New York State Limited Liability Company located in Brooklyn, New York. 2. Respondent Fiber Gourmet, Inc., is, upon information and belief, a Florida Corporation located in Miami Beach, Florida. 3. Respondent Mauzone Mania, is a New York State Limited Liability Company located in Brooklyn, New York. 4. Respondent Fried resides in Brooklyn, New York. 5. Fiber Gourmet and Fried entered into a certain Manufacturers Services Agreement, dated May 6, 2013 (the MSA ). The MSA contained an arbitration agreement to cover certain disputes of limited scope. 1 1 The Interim Award misidentifies this as the Master Services Agreement. 1 of 5
6. Fiber Gourmet alleged that Palace and Mauzone conspired with Fried to breach the MSA and commenced an arbitration against all three parties before the American Arbitration Association. 7. Palace and Mauzone sought a stay of the arbitration from this Court, claiming that those entities were not party to any arbitration agreement and thus not obligated to arbitrate with Fiber Gourmet. 8. The Court denied the stay. 9. From the outset of the arbitration and throughout its process, Palace (and Mauzone) objected to being compelled to participate and objected to its role as a respondent therein. 10. After multiple hearing days, the arbitrator issued an Interim Award which resolved all of the factual and legal issues, save for the amount of attorneys fees to be awarded. 11. Annexed as Exhibit A is a copy of the Interim Award, dated March 6, 2017. 12. As to Palace, the arbitrator dismissed Fiber Gourmet s claims against it, finding that Palace was not a party to the MSA and thus not a proper party to the arbitration. 13. Specifically, the arbitrator stated that Palace [was] eliminated from consideration and not subject to the arbitration proceeding so that arbitrator had no jurisdiction over Palace. 14. However, despite dismissing Palace from the arbitration proceeding and finding that Palace was not under the jurisdiction of the arbitrator, the arbitrator issued an injunction against Palace, prohibiting certain of Palace s activities. 15. Without Palace as a party to the arbitration, the arbitrator was without authority of any kind to make any finding or award any penalty or sanction against Palace. 2 2 of 5
16. The MSA provided for the recovery of the costs and expenses, including the attorney s fees, of the prevailing party. 17. The arbitrator found, as a matter of fact, that the true and main dispute that the arbitration was intended to and did address was Fiber Gourmet s claims against Palace. The claims against Fried and Mauzone were lumped into the main dispute against Palace so that Fiber Gourmet s claims against respondents Fried and Mauzone were tangential to Fiber Gourmet s claims against Palace, and Fiber Gourmet intended that its recovery would come from Palace. 18. As such, as between Fiber Gourmet and Palace, Palace was without question the prevailing party, and is thus entitled to recover from Fiber Gourmet its costs and expenses, including attorneys fees, that Palace incurred in defending the arbitration proceeding commenced and maintained solely by Fiber Gourmet. 19. Annexed as Exhibit B is a copy of the Final Award, dated June 2, 2017. The Final Award was received on June 5, 2017. 20. The Final Award specifically incorporates the findings of the Interim Award and then addresses a fee/costs award against Fried and Mauzone, in favor of Fiber Gourmet. 21. The Final Award is final and pursuant to CPLR Article 75, this Petition is timely filed having been made within 90 days of its issuance and receipt. 22. No previous application has been made for the relief sought herein. 3 3 of 5
WHEREFORE, Petitioner respectfully requests, pursuant to CPLR 7511, that this Court issue an Order vacating LLC and (A) so much of the Interim and Final Awards as they (i) collectively or otherwise award any relief against petitioner Palace Foods, (ii) find that petitioner Palace Foods LLC was not a prevailing party in the arbitration so that it may recover its costs and expenses, including attorneys fees, incurred in connection with the arbitration, from respondent Fiber Gourmet, Inc.; and (B) for such other and further relief as the Court may deem just and equitable. Dated: June 5, 2017 THE SILBER LAW FIRM, LLC By Meyer Y. Silber Attorneys for Petitioner 11 Broadway Suite 715 New York, New York 10004 Tel.: (212) 765-4567 4 4 of 5
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