Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Order to Show Cause:

PapersNumbered

Notice of Motion and Affidavits Annexed ...........1, 2

Answering Affidavits/Cross-Moving Papers..............3

Reply Papers/Opp. To Cross-Motion ^[FN1].........................4

This case features a very unusual fact pattern. Plaintiff sued Chaya Stegman (henceforth, "Defendant") and Joel Stegman (henceforth, "Stegman") seeking a monetary judgment. Only Defendant answered and appeared in front of this Court for a conference. Plaintiff and Stegman subsequently went to binding arbitration in Bais Din and Plaintiff was victorious. Thereafter, on the adjourn date, only Plaintiff appeared in court and a default judgment against Defendant and Stegman resulted. About a month later, Plaintiff and Defendant signed an arbitration agreement to have their dispute heard in Bais Din - Plaintiff alleges to supplement his civil judgment with a religious counterpart and Defendant claims that she, not knowing about the default judgment, thought it was for adjudication of the dispute. To Plaintiff's surprise, the Bais Din panel found that Defendant was not liable. About a year later, Defendant filed an Order to Show Cause seeking to vacate the default judgment against her. After argument, this Court granted her motion, vacated the judgment against her, and restored the case to the trial calendar.

Defendant now moves to dismiss the complaint against her or, in the alternative, for summary [*2]judgment in her favor and for attorney's fees for having to fight this matter in Court in contravention of the arbitration agreement. Plaintiff cross-moves to stay this action pending the appeal of this Court's order vacating the default judgment and to compel Defendant to respond to discovery or for a preclusion order against Defendant for failure to timely respond to discovery.

It is undisputed that Plaintiff and Defendant agreed to go to arbitration after Defendant defaulted in this Court. The parties were free to do so, regardless of their respective rationales, and the Court will respect their choice (see, Mitchell v New York Hosp., 61 NY2d 208, 214 [1984][citations and internal quotation marks omitted]["We have repeatedly held that, unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course. They may fashion the basis upon which a particular controversy will be resolved and in doing so they may stipulate away statutory, and even constitutional rights."] Palmieri v. Town of Babylon,

87 AD3d 625, 626 [2d Dept 2011]["Parties are free to chart their own procedural course by stipulation"]). By electing to go to arbitration, Plaintiff, regardless of his stated reason, elected to, in effect, renounce the judgment in his favor in order to proceed anew in a different forum.^[FN2]

Neither party timely moved to confirm the arbitrators' decision. Nonetheless, it is well established that collateral estoppel attaches to issues resolved on the merits during arbitration, even in the absence of confirmation of the award (Matter of New York Cent. Mut. Fire Ins. Co. v Reinhardt, 27 AD3d 751[2d Dept 2006] Matter of Fidelity Brokerage Servs. v Epstein, 239 AD2d 342 [2d Dept 1997] County of Rockland v Aetna Cas. & Sur. Co., 129 AD2d 606 [2d Dept 1987] Hilowitz v Hilowitz, 85 AD2d 621 [2d Dept 1981]). As the Bais Din undisputedly addressed the identical claim advanced herein on the merits, this Court cannot do so and this case is dismissed.

Defendant seeks attorney's fees for "having to fight this matter in this Honorable Court in violation of the parties' signed arbitration agreement." Said agreement notes in relevant part, "[i]n the event one party does not obey by the award/decision and the other party seeks court intervention or enforcement, it is hereby agreed that the disobeying party shall pay reasonable attorney fees incurred by such proceeding." It is true that Plaintiff attempted to enforce his default judgment and that, only thereafter, Defendant secured counsel and sought judicial intervention. However, Plaintiff, at the time pro-se himself, was attempting to collect on what he believed to be a valid (pre-existing) judgment. It does not appear that he was seeking to contravene the wishes of the arbitration panel. Accordingly, this Court will nor award attorney's fees to the Defendant.

Ordered that this action is dismissed as to Defendant Chaya Stegman.

The foregoing constitutes the Decision and Order of the Court.

Dated: Brooklyn, New York

March 18, 2014

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