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Matter of James A. Smith Contracting v. Stahl

Appellate Division of the Supreme Court of New York, Second Department
Jun 25, 1990
162 A.D.2d 688 (N.Y. App. Div. 1990)

Opinion

June 25, 1990

Appeal from the Supreme Court, Nassau County (O'Shaughnessy, J.).


Ordered that the judgment is affirmed, with costs.

The parties to the proceeding were also parties to a construction contract giving rise to a dispute over payment for, and the quality and completeness of, the appellant's work. They then submitted the dispute to arbitration. During the course of the arbitration proceeding, which spanned several months and 14 separate hearings, it allegedly came to the appellant's attention that 1 of 3 arbitrators made improper comments in the presence of a nonparty which demonstrated bias about the disputed work. Although the appellant unsuccessfully sought to question the arbitrators about the details of the alleged conversation, he made no formal accusation of bias, made no written protest as required by the Construction Industry Arbitration Rules governing the arbitration, and did not call as a witness the person to whom the improper remarks were allegedly made, although that witness was available. The appellant nonetheless argues that, in addition to other alleged instances of misconduct, the failure of the arbitrator to disclose the details of the alleged conversation warrants vacatur of the award ultimately made in the petitioner's favor.

The appellant has, under the circumstances presented here, waived the right to object to the arbitration award on the ground that the arbitrator failed to disclose the details of the alleged conversation (cf., Matter of Stevens Co., 34 N.Y.2d 123, 129; Rose v. Travelers Ins. Co., 118 A.D.2d 844; Matter of Cheek v Chubb Son, 70 A.D.2d 622). In any event, the appellant has failed to sustain his burden of demonstrating the existence of any misconduct prejudicing his rights or the integrity of the arbitration process (see, CPLR 7511 [b] [1] [i]; [2] [i]; cf., Matter of Goldfinger v. Lisker, 68 N.Y.2d 225; see also, Matter of Wiener Furniture Co., 90 A.D.2d 875). Thompson, J.P., Sullivan, Harwood and Miller, JJ., concur.


Summaries of

Matter of James A. Smith Contracting v. Stahl

Appellate Division of the Supreme Court of New York, Second Department
Jun 25, 1990
162 A.D.2d 688 (N.Y. App. Div. 1990)
Case details for

Matter of James A. Smith Contracting v. Stahl

Case Details

Full title:In the Matter of JAMES A. SMITH CONTRACTING, INC., Respondent, v. NORMAN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 25, 1990

Citations

162 A.D.2d 688 (N.Y. App. Div. 1990)
557 N.Y.S.2d 402

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