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Petitioner-appellant Peter Ottley filed a petition to confirm an arbitration award in the United States District Court for the Southern District of New York (Carter, J.). In his petition, Ottley requested that, in the event confirmation was opposed, respondents-appellees Albert Schwartzberg, Rose Boritzer, and Arno Boritzer be required to pay damages authorized by section 502(g)(2) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(g)(2) (1982). The district court denied the petition to confirm, and remanded the matter to the arbitrator to determine whether respondents were in compliance with the award.

Ottley appeals from the district court order, seeking confirmation of the award and renewing his claims for damages. Respondents urge dismissal of this appeal on jurisdictional grounds, contending that the district court's order is not a final, appealable order within the purview of 28 U.S.C. § 1291 (1982).

We hold that the order is appealable, that the district court's remand to the arbitrator was improper, and that petitioner's ERISA claims for damages were not properly joined in a petition to confirm an arbitration award.

We reverse and remand with instructions that the petition to confirm be granted and that the ERISA claims be dismissed without prejudice.


819 F.2d 373 (1987)

Peter OTTLEY, as President of Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, SEIU, AFL-CIO, and as Trustee of the New York City Nursing Home — Local 144 Welfare Fund, the Local 144 Nursing Home Pension Fund, and the Local 144 Health Facilities Training & Upgrading Fund, Petitioner-Appellant, v. Albert SCHWARTZBERG, Rose Boritzer, and Arno Boritzer d/b/a Kingsbridge Heights Manor, Respondents-Appellees.

No. 757, Docket 86-7036.

United States Court of Appeals, Second Circuit.

Argued February 11, 1987.Decided May 27, 1987.

New York Law School location: File #336, Box #119