Opinion
November 6, 1989
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that the judgment is affirmed, with costs.
The appellant had substantial contact with the respondent's New York City representative, RMG Investigations, Inc. (hereinafter RMG), concerning the property damage claim arising out of an accident. Thereafter, the appellant sent a notice of arbitration with respect to the personal injury claims arising out of the same accident to the respondent's representative in East Orange, New Jersey. The respondent failed to appear at the arbitration hearing, and, as a result, awards were made upon its default. Finding that the East Orange office to which the notice of arbitration was sent was not the proper local representative to receive notice, the Supreme Court vacated the arbitration award and ordered a new arbitration hearing. We affirm.
Pursuant to 11 NYCRR 65.10 (d) (2) (iii), a notice of arbitration should be sent to the "local representative of the respondent". Based upon the record before us, the appellant's counsel should have known that RMG was the local representative for this claim. Whether sending the notice to the wrong representative was done intentionally or inadvertently, the appellant cannot now rely on the respondent's default (see, Matter of Nixon Taxi Corp. [State Farm Gen. Ins. Co.], 128 A.D.2d 616, 619; Matter of Metropolitan Prop. Liab. Ins. Co. v Boisette, 105 A.D.2d 785, 786). The respondent is entitled to a fair opportunity to be heard at the arbitration hearing (Crawford v Merrill Lynch, Pierce, Fenner Smith, 35 N.Y.2d 291, 296), and, accordingly, vacatur of the arbitration award was proper. Mangano, J.P., Thompson, Bracken and Rosenblatt, JJ., concur.