Opinion
October 25, 1993
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the judgment is affirmed, with costs.
Contrary to the petitioner's contention, the arbitrator's refusal to grant her a continuance to procure photographs of the damaged vehicle did not constitute misconduct. It is well established that the decision as to whether to grant or refuse an adjournment is within the sound discretion of the arbitrator, and that it is only when that discretion is abused that misconduct results (see, Matter of Herskovitz [Kaye Assocs.], 170 A.D.2d 272; Matter of Omega Contr. v. Maropakis Contr., 160 A.D.2d 942). Here, however, both the petitioner and her witness testified about the condition of the insured's automobile after the accident, and their testimony was corroborated by an affidavit from the president of the body shop where the damaged vehicle remained for approximately one month following the accident. Under these circumstances, the failure to grant the petitioner an adjournment in order to present additional evidence to bolster her testimony and the testimony of her witness was not an abuse of discretion amounting to misconduct (see, Matter of Sedlis [Gertler], 161 A.D.2d 228; Matter of Weiner Furniture Co. v Kingston City Schools Consol., 90 A.D.2d 875). Furthermore, the insurer's failure to produce the photographs did not prejudice the petitioner's rights, since the photographs were not probative of the key issue in this case, which was whether or not the petitioner was a passenger in the insured's vehicle at the time of the accident.
We note that the arbitrator's finding that the petitioner was not a passenger in the insured's vehicle at the time of the accident is supported by a rational basis, and, accordingly, may not be vacated (see, Matter of Petrofsky [Allstate Ins. Co.], 54 N.Y.2d 207; Matter of Panton v. Allstate Ins. Co., 173 A.D.2d 831; Matter of Prudential Prop. Cas. Ins. Co. v. Carleton, 145 A.D.2d 492; Matter of Nyack Hosp. v. Government Empls. Ins. Co., 139 A.D.2d 515).
We have considered the petitioner's remaining contention and find it to be without merit. Bracken, J.P., Sullivan, Eiber and Pizzuto, JJ., concur.