Opinion
No. 2013–859 N C.
2014-07-28
ROSMAN & COMPANY, Respondent, v. David CHIDECKEL, Appellant.
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 A.D.2d 888 [1990]; Finamore v. Huntington Rehabilitation Assn., 150 A.D.2d 426 [1989]; B.Y., M.D., P.C. v. Progressive Direct Ins. Co., 30 Misc.3d 133[A], 2011 N.Y. 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 N.Y. 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 N.Y. 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.