In Schlesinger v. Schlesinger, 21 AD3d 942, 801 N.Y.S.2d 615 (2005), the Appellate Division, Second Department found that Justice Spodek's modification of the arbitration award (which gave Victor a 50% undivided ownership interest in the Property) was erroneous.
The court found that in making the modification, Justice Spodek was prompted by his concern for KDE's due process rights. However, the Appellate Division held that this concern was misplaced since KDE was not a party to the arbitration or the action from which it arose, and that "neither the award nor its confirmation will adversely affect KDE's rights since KDE has not been made a party, "unless it is in privity with a party to the arbitration" (id. at 945).
The Appellate Division further held that such issue "must await subsequent litigation, and we express no opinion on it" (id. at 945).
Subsequently, in Schlesinger (46 AD3d 539, 846 N.Y.S.2d 367), the Appellate Division, Second Department granted that branch of KDE's motion to modify the caption by deleting its name, holding that KDE's name did not appear in the action (Schlesinger, 21 AD3D 942, 801 N.Y.S.2d 615), and that it was not a legal party to the appeal.