Opinion
1061/07.
Decided February 25, 2010.
Amos Weinberg, Esq., Plaintiff.
Law Offices of Teresa M. Spina, Defendant.
Defendant moves for leave to file a demand for a trial de novo.
BACKGROUND
This case raises the issue of whether a party who consents to the entry of a judgment at mandatory arbitration can demand a trial de novo.
Plaintiff commenced this action seeking to recover first party no-fault benefits. Defendant has denied the claim on the grounds the services for which the claim was submitted were not medically necessary based upon Independent Medical Examinations ("IME") conducted by an orthopedist, chiropractor and acupuncturist.
Because the amount sued for was less than $6000, the action went to mandatory arbitration. 22 NYCRR Part 28; and 22 NYCRR 212.40.
The arbitration was held on June 26, 2009. The parties stipulated to plaintiff's prima facie case and to the timely denial of the claim. The only issue to be heard by the arbitrator was medical necessity. Rather than produce witnesses, the defendant sought to submit to the arbitrator a packet of material containing the IME reports of the doctor, chiropractor and acupuncturist who conducted the IMEs and the medical reports and records reviewed by doctor, chiropractor and acupuncturist who conducted the IMEs.
The arbitrator refused to accept these materials from the defendant's attorney and insisted upon witness testimony.
Plaintiff's counsel asserts the arbitrator offered to adjourn the arbitration to permit the defendant to produce the witnesses on the adjourn date. Plaintiff claims defendant's counsel refused this offer.
The arbitrator issued a report awarding judgment to the plaintiff. The arbitrator's report states the defendant consented to the entry of a judgment in favor of the plaintiff. The arbitrator's report was filed with the clerk on June 30, 2009. Defendant did not file a demand for a trial de novo. On August 18, 2009, plaintiff entered a judgment upon the arbitrator's decision.
Defendant asserts it received a copy of the arbitrator's report on August 17, 2009 when it received a copy of the proposed judgment from plaintiff's attorney.
The attorney who appeared at the arbitration on behalf of the defendant submits an affirmation in support of the motion in which she denies consenting to the entry of a judgment in favor of the plaintiff.
This is directly contradicted by the attorney for the plaintiff who attaches to the opposition papers a copy of a document addressed to the arbitrator in which purportedly executed by the attorney who appeared at the arbitration on behalf of the defendant whereby the attorney ". . . consents to judgment in favor of plaintiff." The court notes the signature of the attorney on the document submitted to the arbitrator consenting to the entry of the judgment in favor of the plaintiff is significantly different from the signature of the same attorney on affirmation submitted by the same attorney in support of this motion.. Defendant did not submit reply papers in which the attorney denied providing the arbitrator with a document consenting to the entry of a judgment in favor of plaintiff or denies signing said document.
DISCUSSION
A party who has not defaulted at the arbitration may obtain a trial de novo by serving and filing with the clerk of the court a Demand for a Trial De Novo within 30 days of the date of delivery of the award or if service of the arbitrator's award is made by mail by serving and filing a Demand for a Trial De Novo within 35 days of the date of service of the arbitrator's award. 22 NYCRR 28.12(a). The court may excuse a party's failure to timely file a Demand for a Trial De Novo if the failure to file the demand is a result of mistake or excusable neglect.
In the absence of proof of service indicating the Commissioner of Arbitration served the award upon the defendant's attorneys, defendant's time to file a demand for a trial de novo began to run when plaintiff served defendant with a copy of the proposed judgment and a copy of the arbitrator's report. Bajaj v. State-Wide Ins. Co., 15 Misc 3d 1110(A) (Nassau Dist. Ct. 2007). Thus, defendant could have served and filed a Demand for a Trial De Novo as of right if it had the right to do so and if it had it done so within 35 days of August 17, 2009. Defendant did not attempt to serve a Demand for a Trial De Novo as of right. Instead, it made this motion.
Almost from the outset of the compulsory arbitration, the courts have been faced with the situation where a party's attorney "appears" at but does not participate in the arbitration. The courts have held that a party whose attorney appears at but does not participate in an arbitration has defaulted and cannot demand a trial de novo. Finamore v. Huntington Cardiac Rehabilitation Assoc., 150 AD2d 426 (2nd Dept. 1989); Jedor Holding Corp. v. Barron, 9 Misc 3d 1125(A) (Civil Ct. NY Co. 2005); Martbeat Medical Supply, Inc. V. Geico Ins. Co., 5 Misc 3d 1019(A) (Nassau Dist. Ct. 2002); and Cable Films v. Ampro Video Productions, Inc., 125 Misc 2d 874 (Civil Ct. NY Co. 1984). These cases have found that a party who refuses to participate in the arbitration has defaulted and can only obtain a trial de novo by moving to vacate their default. 22 NYCRR 28.7.
22 NYCRR 28.7 permits a party who has defaulted at arbitration to vacate their default and have the action restored to the arbitration calendar upon good cause and payment of the administrative fees. If such motion is granted, the parties are then required to proceed to mandatory arbitration. Only after the arbitrator has decided the matter can a party demand a trial de novo.
However, no cases appear to have dealt with the issue of whether a party who consents to the entry of judgment at the arbitration can demand a trial de novo.
Mandatory arbitration for cases in which the ad damnum is less than $6000 was designed to alleviate calendar congestion. Permitting a party to consent to the entry of a judgment at arbitration and then demand a trial de novo ". . . would circumvent the statute providing for compulsory arbitration and render such law a nullity thereby defeating the intent of the arbitration procedure." Honeywell Protection Services v. Tandem Communications, Inc., 130 Misc 2d 130, 131 (Civil Ct. NY Co. 1985).
A trial de novo can be demanded by a party who appears at and participates in the arbitration. A defendant can appear at and participate in an arbitration without producing its client or presenting any evidence if the defendant's attorney cross-examines the plaintiff's witnesses. San-Dar Assocs v. Adams, 167 Misc 2d 727 (App. Term 1st Dept. 1996); and Doyle v. Amtec Management 143 Misc 2d 292 (Civil Ct. NY Co. 1989). A defendant can also participate in an arbitration by presenting documentary evidence or any other evidence the arbitrator chooses to permit into evidence and consider in rendering a decision. Id.
The conduct of the arbitration is left to the discretion of the arbitrator ". . . with due regard to the law and established rules of evidence." 22 NYCRR 28.8(a) The only clear deviation from the rules of evidence is in a personal injury action where medical proof may be established by submission into evidence fo the reports of treating or examining physicians upon agreement of the parties. Id. However, this is not a personal injury action.
The arbitrator has the authority to determine ". . . the admissibility of evidence and the form in which it is to be offered." 22 NYCRR 28.8(b)(4). In this case, the arbitrator decided she would not accept in evidence or consider in reaching her decision copies of the IME reports or the medical reports and records relied upon by the health care professionals who found the health care treatment at issue in this action not medically necessary. The arbitrator insisted on testimony from these health care professionals. Such a ruling is within the authority of the arbitrator.
Since the defendant was unprepared to present such testimony, the defendant could and probably should have requested an adjournment. This alternative was offered by the arbitrator and refused by the defendant.
Although the defendant's attorney who appeared at the arbitration denied consenting to the entry of a judgment and submitted an affirmation to that effect, that attorney did not submit a reply affirmation denying she signed the document produced by plaintiff consenting to the entry of judgment in favor of the plaintiff in this action.
The defendant essentially stipulated the entry of judgment in favor of the plaintiff. The party seeking to vacate a stipulation must present sufficient evidence to vacate a contract such as fraud, mistake, collusion or accident. Dubi v. Skiros Corp. , 66 AD3d 954 (2nd Dept. 2009); and Nash v. Yablon-Nash , 61 AD3d 832 (2nd Dept. 2009). Defendant does not offer any evidence that would justify the vacating of the document executed by the attorney who appeared at the arbitration on its behalf in which the attorney consented the entry of judgment.
If the court were to permit the defendant leave to file a Demand for a Trial De Novo in this action, the court would be creating a simple method by which any party to an action could avoid or evade arbitration by simply consenting to the entry of a judgment and then demanding a trial de novo.
Parties are granted the right to a trial de novo to protect a party's right to a trial by jury. CPLR 3405. The trial de novo has evolved into a procedure by which a party who does not agree with the decision of the arbitrator is given the opportunity to be heard anew by the court. A trial de novo was never intended to provide a party with the means to circumvent arbitration.
Stated simply, a defendant who at mandatory arbitration consents to the entry of judgment in favor of plaintiff cannot demand a trial de novo.
Therefore, defendant's motion for leave to file a Demand for a Trial De Novo is denied.
SO ORDERED.