In re the Arbitration between Astir Compania Naviera & Petroleo Brasileiro 31 A.D.2d 528

Order, entered on July 3, 1968, vacating arbitration awards, unanimously reversed on the law and on the facts, vacatur denied and awards confirmed, with $50 costs and disbursements to respondent-appellant. Petitioner has not established prejudicial misconduct on the part of any member or members of the panel of arbitrators, who were selected by the parties in accordance with the provisions of the arbitration agreement. The record demonstrates that all three arbitrators were present at the hearings and that, at the conclusion thereof, they all met and deliberated as *529a panel for over three hours, on ¡September 8, 1966. The result was that Arbitrator Santos and Arbitrator Stam reached opposing decisions, while Arbitrator Siebel withheld his decision as he was then undecided. On September 12 Arbitrator Siebel telephoned each of the other two arbitrators and advised them that he had come to a decision and was joining Arbitrator Santos in deciding in favor of respondent-appellant. Thereafter Santos and Siebel met, without the third arbitrator, for the purpose of agreeing on the language of the award. Certainly this does not constitute misconduct within the purview of CPLR 7511 (subd. [b], par. 1, cl. [i]) and there is no other proof in the record to indicate that the majority willfully excluded the third arbitrator for any improper purpose. “Although it is desirable to have all of the arbitrators meet, following final submission of the controversy, and participate in the deliberations so that the parties to the dispute may have the benefit of the effect the views and arguments of each arbitrator might have upon the others, the presence of all is not required (Matter of American Eagle Fire Ins. Co. v. New Jersey Ins. Co., 240 N. Y. 398).” (Matter of Buitoni Prods. v. Nappi, 275 App. Div. 215, 216.) (Emphasis added.) Concur—Botein, P. J., Stevens, Capozzoli, Rabin and McNally, JJ.