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Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts


Rules of the Chief Judge


PART 28. Alternative Method Of Dispute Resolution By Arbitration
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28.0 [Repealed]
28.1 Definitions
28.2 Mandatory submission of actions to arbitration
28.3 Arbitration commissioner
28.4 Selection of panels of arbitrators
28.5 Assignment of actions to panel
28.6 Scheduling of arbitration hearings
28.7 Defaults
28.8 Conduct of hearings
28.9 Costs of hearings; stenographic record
28.10 Compensation of arbitrators
28.11 Award
28.12 Trial de novo
28.13 Motion to vacate award
28.14 General power of court
28.15 Training courses
28.16 Judicial hearing officers

Section 28.0 [Repealed]

Historical Note
Sec. filed Dec. 7, 1979; repealed, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 28.1 Definitions.

(a) The words "Panel of Arbitrators" or "Panel" in this Part shall mean: (1) a group of three attorneys chosen to serve as arbitrators by the arbitration commissioner pursuant to section 28.4 of this Part; or (2) a single attorney assigned by the arbitration commissioner, as the Chief Administrator of the Courts, (hereinafter denominated the Chief Administrator), shall designate from time to time in a particular county or court; or (3) a single arbitrator in the event the parties, by stipulation, provide for arbitration before a single arbitrator in those cases where a panel of three arbitrators otherwise is required.

(b) The term "Chairperson" shall mean the attorney so designated by the arbitration commissioner pursuant to section 28.4 of this Part, or the single arbitrator assigned by the arbitration commissioner.

Historical Note
Sec. filed Sept. 14, 1970; amds. filed: Nov. 18, 1971; Nov. 7, 1979; repealed, new filed Dec. 7, 1979; amds. filed: Feb. 2, 1982; April 4, 1986 eff. March 25, 1986. Amended (b).

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Section 28.2 Mandatory submission of actions to arbitration.

(a) The Chief Administrator may establish in any trial court in any county the arbitration program authorized by this Part.

(b) In each county where an arbitration program is established by order of the Chief Administrator, all civil actions for a sum of money only, except those commenced in small claims parts and not subsequently transferred to a regular part of court, that are noticed for trial or commenced in the Supreme Court, County Court, the Civil Court of the City of New York, a District Court or a City Court, on or after the effective date of the order where recovery sought for each cause of action is $6,000 or less, or $10,000 or less in the Civil Court of the City of New York, or such other sum as may be authorized by law, exclusive of costs and interest, shall be heard and decided by a panel of arbitrators. The Chief Administrator may also, at any time, upon the establishment of the program in any particular court or county or thereafter, provide for the submission to arbitration of actions, seeking recovery of such sums, that are pending for trial in those courts on the effective date of the order.

(c) In addition, upon stipulation filed with the clerk of the court where the action was commenced or, if the case was transferred, the clerk of the court to which it has been transferred, any civil action for a sum of money only, pending or thereafter commenced in such courts, including actions removed to a court of limited jurisdiction from the Supreme Court pursuant to CPLR 325(d), regardless of the amount in controversy, shall be arbitrated, and in any such action the arbitration award shall not be limited to the amounts provided in subdivision (b) of this section, or to the monetary jurisdiction of the court. Any stipulation pursuant to this section may set forth agreed facts, defenses waived or similar terms, and to that extent shall replace the pleadings.

(d) In any action subject to arbitration under these rules or submitted to arbitration by stipulation, the arbitration panel shall have jurisdiction of any counter-claim or cross-claim for a sum of money only that has been interposed, without regard to amount.

(e) All actions subject to arbitration shall be placed on a separate calendar known as the arbitration calendar, in the order of filing of the note of issue, notice of trial or stipulation of submission, except that where a defendant is in default, the plaintiff may seek a default judgment pursuant to the provisions of CPLR 3215.

(f) The appropriate administrative judge, with the approval of the Deputy Chief Administrator, may direct a pretrial calendar hearing by the court of actions pending on the arbitration calendar. If an action is not settled or dismissed, or judgment by default is not directed upon the hearing, it shall be processed thereafter in accordance with the provisions of this Part.

Historical Note
Sec. filed Sept. 14, 1970; amds. filed: May 17, 1971; Nov. 18, 1971; Feb. 29, 1972; June 22, 1973; Nov. 7, 1979; repealed, new filed Dec. 7, 1979; amds. filed: Feb. 2, 1982; June 19, 1990 eff. May 22, 1990. Amended (b)-(c).

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Section 28.3 Arbitration commissioner.

(a) The Chief Administrator shall designate, in each county where arbitration is established pursuant to this Part, an arbitration commissioner. The compensation, if any, payable to a commissioner, other than a full-time public official or employee who shall receive no compensation as such commissioner, shall be determined by the Chief Administrator within the appropriation made available for that purpose.

(b) The commissioner shall maintain complete and current records of all cases subject to arbitration under this Part and a current list of attorneys consenting to act as arbitrators.

Historical Note
Sec. filed Sept. 14, 1970; amds. filed: May 17, 1971; Feb. 29, 1972; Nov. 7, 1979; repealed, new filed Dec. 7, 1979; amd. filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 28.4 Selection of panels of arbitrators.

(a) The members of each panel of arbitrators shall be appointed by the commissioner from the list established by the Chief Administrator of the Courts of attorneys-at-law admitted to practice in the State of New York. The Chief Administrator may establish procedures to evaluate the qualifications of applicants for placement on the list. No attorney shall be appointed unless he or she shall have filed with the commissioner a consent to act and an oath or affirmation equitably and justly to try all actions coming before him or her. An attorney may be removed from the list in the discretion of the commissioner upon approval of the Chief Administrator.

(b) Names of attorneys shall be drawn at random from the list. Where a three- arbitrator panel is utilized, the first name drawn for each three-arbitrator panel shall be the chairperson thereof. The chairperson of each panel shall have been admitted to practice in New York State as an attorney for at least five years; and the second and third members must be admitted to practice but not for any specified period of time, unless the Chief Administrator shall, by order, otherwise determine. Not more than one member or employee of a partnership or firm shall be appointed to any panel.

(c) No attorney who has served as an arbitrator shall be eligible to serve again until all other attorneys on the current list have had an opportunity to serve.

(d) An arbitrator who is related by blood, marriage or professional ties to a party or his counsel shall be disqualified for cause. An arbitrator may disqualify himself upon his own application, or by application of a party made within five days of the receipt of the notice of the hearing as provided by section 28.6 of this Part. Should a party object to the arbitrator's refusal to disqualify himself or herself for cause, the party may apply to the arbitration commissioner for a ruling. The commissioner's ruling shall be binding on all parties. If an arbitrator is disqualified, the commissioner shall select another arbitrator in the manner authorized by this section.

Historical Note
Sec. filed Sept. 14, 1970; amds. filed: May 17, 1971; Nov. 18, 1971; June 22, 1973; repealed, new filed Dec. 7, 1979; amds. filed: Feb. 2, 1982; April 4, 1986 eff. March 25, 1986. Amended (a).

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Section 28.5 Assignment of actions to panel.

(a) The commissioner shall assign to each panel at least the first three, but no more than six, actions pending on the arbitration calendar.

(b) If an action is settled or discontinued before the hearing, the attorney for the plaintiff shall immediately notify the chairperson and the commissioner. If the plaintiff is not represented by an attorney, the chairperson, upon receiving notice of such settlement or discontinuance, shall immediately notify the commissioner. The commissioner, upon receiving such notice, shall assign the next available action to the panel.

Historical Note
Sec. filed Sept. 14, 1970; amds. filed: May 17, 1971; Nov. 18, 1971; repealed, new filed Dec. 7, 1979; amd. filed Feb. 2, 1982 eff. jan. 1, 1982.

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Section 28.6 Scheduling of arbitration hearings.

(a) The hearing shall be held in a place provided by the court, by the commissioner, by the chairperson of the panel or, at the request of the chairperson, by a member of the panel. Unless otherwise agreed by the panel, parties and counsel, such place shall be within the county.

(b) The chairperson shall fix a hearing date and time, not less than 15 nor more than 30 days after the case is assigned, and shall give written notice to the members of the panel and the parties or their counsel at least 10 days before the date set. The commissioner may, on good cause shown, extend for a reasonable period the time within which the hearing shall be commenced. Such date and time shall not be a Saturday, Sunday, legal holiday or during evening hours except by agreement of the panel, parties and counsel. Adjournments may be granted at the discretion of the chairperson only upon good cause shown.

(c) If the chairperson is unable to schedule a hearing within 30 days after the case is assigned, or within such further period as the commissioner may set, he shall notify the commissioner in writing of the reasons for such inability. The commissioner shall mark the action "continued" and place it on the arbitration calendar, and shall assign another action to the panel.

(d) Any action which is continued twice, after assignment to two panels, shall be referred by the commissioner to the court where the action was commenced or, if the action was transferred, to the court to which it was transferred, for a hearing on the cause of the inability to hold an arbitration hearing. The court, upon such hearing, may order a dismissal, or authorize the entry of judgment by default pursuant to CPLR 3215, or refer the action to the commissioner for assignment to another panel.

Historical Note
Sec. filed Sept. 14, 1970; amds. filed: May 17, 1971; Nov. 7, 1979; repealed, new filed Dec. 7, 1979; amds. filed: Feb. 2, 1982; April 4, 1986 eff. March 25, 1986. Amended (b)
.

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Section 28.7 Defaults.

(a) Where a party fails to appear at the hearing, the panel shall nonetheless proceed with the hearing and shall make an award and decision, as may be just and proper under the facts and circumstances of the action, which may be entered as a judgment forthwith pursuant to section 28.11(b) of this Part. The judgment, if any, the default and the award may be vacated and the action may be restored to the arbitration calendar only upon order of the court where the action was commenced or, if the action was transferred, the court to which it was transferred, upon good cause shown. Such order of restoration shall be upon condition that the moving party pay into the court an amount equal to the total fees payable by the administrative office for the courts to the panel.

(b) Should all parties fail to appear at the hearing, the panel must file a report and award dismissing the action. The action may be restored to the arbitration calendar only upon order of the court where the action was commenced or, if the action was transferred, the court to which it was transferred, upon good cause shown. Such order or restoration may provide for the payment by any party into the court of such part of the panel fees payable by the administrative office for the courts to the panel as the court may determine to be just and proper.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.8., new filed May 17, 1971; amd. filed June 22, 1973; repealed, new filed Dec. 7, 1979; amd. filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 28.8 Conduct of hearings.

(a) The panel shall conduct the hearing with due regard to the law and established rules of evidence, which shall be liberally construed to promote justice. In personal injury cases, medical proof may be established by the submission into evidence of medical reports of attending or examining physicians upon stipulation of all parties.

(b) The panel shall have the general powers of a court, including but not limited to:

(1) subpoenaing witnesses to appear;

(2) subpoenaing books, papers, documents and other items of evidence;

(3) administering oaths or affirmations;

(4) determining the admissibility of evidence and the form in which it is to be offered; and

(5) deciding questions of law and facts in the actions submitted to them.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.9, new added by renum. 28.7, filed May 17, 1971; repealed, new filed Dec. 7, 1979 eff. Jan. 2, 1980.

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Section 28.9 Costs of hearings; stenographic record.

(a) Witness fees shall be the same as in the court in which the action was commenced or, if the action was transferred, the court to which the action was transferred and the costs shall be borne by the same parties as in court.

(b) The panel shall not be required to cause a stenographic record to be made, but if any party, at least five days before the hearing, requests such record be kept and deposits $50 or such additional sum as the panel may fix to secure payment therefor, the panel shall provide a stenographer. Any surplus deposited shall be returned to the party depositing it. The cost of the stenographer shall not be a taxable disbursement.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.10,new added by renum. 28.8, filed May 17, 1971; repealed, new filed Dec. 7, 1979; amd. filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 28.10 Compensation of arbitrators.

(a) The Chief Administrator shall provide for the compensation, including expenses, payable to each arbitrator to the extent of money available to the administrative office for the courts for this purpose. Claims for such compensation shall be made to the commissioner after entry of the award on forms prescribed by the Chief Administrator, except that a claim for compensation of the chairperson of a panel also may be made where the action is settled or withdrawn after a panel hearing date has been scheduled but before the hearing is commenced, and a claim for compensation of an arbitrator other than a chairperson may be made where the action is settled or withdrawn within three days of the date scheduled for the hearing. The commissioner shall forward all claims approved by him to the Chief Administrator. Any arbitrator may apply to the commissioner for reimbursement of extraordinary expenses necessarily incurred by him in the same manner as provided for application for ordinary compensation.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.11, new added by renum. 28.9, filed May 17, 1971; amd. filed Nov. 7, 1979; repealed, new filed Dec. 7, 1979; amd. filed Feb. 2; 1982 eff. Jan. 1, 1982.

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Section 28.11 Award.

(a) The award shall be signed by the panel of arbitrators or at least a majority of them. The chairperson shall file a report and the award with the commissioner within 20 days after the hearing, and mail or deliver copies thereof to the parties or their counsel. The commissioner shall mark his files accordingly, file the original with the clerk of the court where the action was commenced or, if the action was transferred, the court to which it was transferred, and notify the parties of such filing.

(b) Unless a demand is made for a trial de novo, or the award vacated, the award shall be final and judgment shall be entered thereon by the clerk of the court where the action was commenced or, if the action was transferred, the clerk of the court to which it was transferred, with costs and disbursements taxed in accordance with the Civil Practice Law and Rules, the Uniform City Court Act, the New York City Civil Court Act, or the Uniform District Court Act, as the case may be.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.12, new added by renum. 28.10, filed May 17, 1971; amd. filed June 22, 1973 repealed, new filed Dec. 7, 1979; amd. filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 28.12 Trial de novo.

(a) Demand may be made by any party not in default for a trial de novo in the court where the action was commenced or, if the action was transferred, the court to which it was transferred, with or without a jury. Any party who is not in default, within 30 days after service upon such party of the notice of filing of the award with the appropriate court clerk, or if service is by mail, within 35 days of such service, may file with the clerk of the court where the award was filed and serve upon all adverse parties a demand for a trial de novo.

(b) If the demandant either serves or files a timely demand for a trial de novo but neglects through mistake or excusable neglect to do one of those two acts within the time limited, the court where the action was commenced or, if the action was transferred, the court to which it was transferred, may grant an extension of time for curing the omission.

(c) The demandant shall also, concurrently with the filing of the demand, pay to the court clerk where the award was filed the amount of the fees payable to the panel by the administrative office for the courts pursuant to section 28.10 of this Part. Where a judicial hearing officer has heard and determined the arbitration, the amount payable shall be the same as would have been payable to a single arbitrator or a panel of three arbitrators, as the case may be, if such judicial hearing officer had not been assigned. Such sum shall not be recoverable by the demandant upon a trial de novo or in any other proceeding.

(d) The arbitrators shall not be called as witnesses nor shall the report or award of the arbitrators be admitted in evidence at the trial de novo .

(e) If the judgment upon the trial de novo is not more favorable than the arbitration award in the amount of damages awarded or the type of relief granted to the demandant, the demandant shall not recover interest or statutory costs and disbursements from the time of the award, but shall pay such statutory costs and disbursements to the other party or parties from the time of the filing of the demand for the trial de novo.

(f) If a judicial hearing officer has heard and determined an arbitration, the trial de novo may not be presided over by a judicial hearing officer, except upon consent of the parties.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.13, new added by renum. 28.11, filed May 17, 1971; amds. filed: June 22, 1973; Nov. 7, 1979; repealed, new filed Dec. 7, 1979; amds. filed: Feb. 2, 1982; May 2, 1985; May 12, 1992 eff. April 30, 1992. Amended (c); added (f).

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Section 28.13 Motion to vacate award.

(a) Any party, except one who has demanded a trial de novo , within 30 days after the award is filed, may serve upon all other parties who have appeared and file with the appropriate court clerk a motion to vacate the award on only the grounds that the rights of the moving party were prejudiced because:

(1) there was corruption, fraud or misconduct in procuring the award;

(2) the panel making the award exceeded its power or so imperfectly executed it that a final and definite award was not made; or

(3) there was a substantial failure to follow the procedures established by or pursuant to these rules;

unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

(b) Copies of the motion papers shall be served upon the commissioner within two days after filing. If the motion to vacate is granted, the case shall be returned to the top of the arbitration calendar and submitted to a new panel.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.14, new added by renum. 28.12, filed May 17, 1971; amd. filed June 22, 1973; repealed, new filed Dec. 7, 1979; amd. filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 28.14 General power of court.

The court where the action was commenced or, if the action was transferred, the court to which it was transferred, shall hear and determine all collateral motions relating to arbitration proceedings.

Historical Note
Sec. filed Sept. 14, 1970; renum. 28.15, new added by renum. 28.13, filed May 17, 1971; amd. filed June 22, 1973; repealed, new filed Dec. 7, 1979 eff. Jan. 2, 1980.

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Section 28.15 Training courses.

The Chief Administrator of the Courts may provide for such orientation courses, training courses and continuing education courses for attorneys applying to be arbitrators and for arbitrators as the Chief Administrator may deem necessary and desirable.

Historical Note
Sec. added by renum. 28.14, filed May 17, 1971; amds. filed: Feb. 29, 1972; June 22, 1973; Nov. 7, 1979; repealed, filed Dec. 7, 1979; new filed April 4, 1986 eff. March 25, 1986.

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Section 28.16 Judicial hearing officers.

(a) An arbitration under this Part may be heard and determined by a judicial hearing officer instead of a panel of arbitrators, without regard for whether the arbitration otherwise would be triable before a single arbitrator or a panel of three arbitrators. The judicial hearing officer shall be assigned by the commissioner, with the approval of the appropriate administrative judge, to hear and determine such proceedings as shall be assigned by the commissioner. When a judicial hearing officer presides over an arbitration, the procedures followed shall be as set forth in the provisions of the Part.

(b) Judicial hearing officers serving as arbitrators pursuant to this Part shall receive compensation as provided in section 122.8 of the Rules of the Chief Administrator. A location in which a hearing of the arbitration is held shall be deemed a "facility designated for court appearances" within the meaning of that section.

Historical Note
Sec. filed May 12, 1992 eff. April 30, 1992.