| Rosman & Co. v Chideckel |
| 2014 NY Slip Op 51248(U) [44 Misc 3d 137(A)] |
| Decided on July 28, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated July 11, 2012. The order granted plaintiff's motion to, in effect, vacate an arbitrator's award entered upon plaintiff's default in proceeding at an arbitration.
ORDERED that the order is affirmed, without costs.
In this action to recover for unpaid accounting services, the matter was submitted to mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28). According to the arbitration case report, which finds in favor of defendant, plaintiff appeared by its attorney and defendant appeared in person. Plaintiff subsequently moved to, in effect, vacate its default in proceeding at the arbitration. In support of its motion, plaintiff's counsel alleged that, at the arbitration, he had asked for an adjournment due to the unavailability of plaintiff's witness. After counsel's request had been denied, he did not participate in the arbitration, and therefore the arbitrator found in favor of defendant. The District Court granted plaintiff's motion and ordered the matter restored to the arbitration calendar.
A party's failure to proceed at an arbitration hearing constitutes a default (Bitzko v Gamache, 168 AD2d 888 [1990]; Finamore v Huntington Rehabilitation Assn., 150 AD2d 426 [1989]; B.Y., M.D., P.C. v Progressive Direct Ins. Co., 30 Misc 3d 133[A], 2011 NY Slip Op 50080[U] [App Term, 9th & 10th Jud Dists 2011]; Richard Morgan DO, P.C. v Progressive Northeastern Ins. Co., 30 Misc 3d 133[A], 2011 NY Slip Op 50079[U] [App Term, 9th & 10th Jud Dists 2011]). In order to vacate such a default, the party must show good cause (Rules of the Chief Judge [22 NYCRR] § 28.7 [a]).
In our view, the District Court properly found that plaintiff had established good cause to vacate its default (see Williams v Rastegar, 38 Misc 3d 126[A], 2012 NY Slip Op 52319[U] [App Term, 9th & 10th Jud Dists 2012]), as plaintiff's witness was out of state on a prearranged business trip at the time of the arbitration hearing.
Accordingly, the order is affirmed.
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.