Allison v. State Painting & Decorating Co., Inc.
| Decision Date | 10 November 1988 |
| Citation | 535 N.Y.S.2d 310,141 Misc.2d 797 |
| Court | New York City Court |
| Parties | Ted ALLISON and Marvin Adelson, d/b/a The Concord Co., Plaintiffs, v. STATE PAINTING & DECORATING CO., INC., and Cushman & Wakefield Co., Inc., Defendants. |
Ted Allison and Marvin Adelson, pro se.
Irving B. Lampert, New York City, for defendants.
In this motion defendants seek an order 1) vacating the default judgment entered against them, 2) dismissing the complaint as against defendant Cushman & Wakefield Co., Inc., and 3) for summary judgment in favor of defendant State Painting and Decorating Co., Inc.
This is an action for services rendered and goods sold and delivered to defendants. Since the amount demanded by the plaintiff is less than $6,000.00 this case was tried before an arbitrator pursuant to 22 NYCRR 28.2(b). The arbitrator dismissed plaintiff's causes of action as against defendant Cushman & Wakefield and held in favor of plaintiff against defendant State Painting & Decorating.
Defendant State Painting & Decorating filed a notice for a trial de novo purportedly on its own behalf. On the return date of the trial de novo, the defendants defaulted, and after an inquest, the court granted judgment in favor of plaintiff against both defendants in the sum of $1,375.80.
Defendants, in the instant motion, seek an order vacating the default judgment entered against them and for other relief.
That portion of defendant's motion seeking to dismiss the complaint as against defendant Cushman & Wakefield raises an interesting issue as to whether a party can demand a trial de novo, as to only that portion of the arbitrator's award which found against it and permit the other portion of the award to stand.
Defendants argue that since only defendant State Painting & Decorating filed a notice for a trial de novo, the portion of the arbitrator's award which found in favor of defendant Cushman & Wakefield remains in full force and effect and therefore, plaintiff's action as against it should be dismissed.
22 NYCRR 28.12 provides that a party may demand a trial de novo, with or without a jury, within 30 days after service upon such party of the notice of the filing of the award with the appropriate court clerks, or if service is by mail within 35 days from such service.
The Courts have held that the notice for a trial de novo is the equivalent of a note of issue and once filed, it places upon the trial calendar all claims interposed in the lawsuit including any third-party actions, cross-claims and counterclaims for trial. (Statom v. Lumbermens Mut. Cas. Co., 106 Misc.2d 442, 431 N.Y.S.2d 875; Bridges v. City of Troy, 112 Misc.2d 384, 447 N.Y.S.2d 124). The applications for a trial de novo is a means by which all parties are assured the constitutional right to a trial by jury, if so desired, under compulsory arbitration pursuant to 22 NYCRR Part 28. (Statom v. Lumbermens Mut. Cas. Co., supra ).
A trial de novo means exactly what the words denote which is a new trial...
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...never occurred, thus contemplating a full adjudication, on the merits, of the parties claims. Allison v. State Painting & Decorating Co., 141 Misc.2d 797, 535 N.Y.S.2d 310 [1988]. As a matter of law, the interpretation of statutory language requires the ascertainment of legislative intent, ......
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...Bridges v. City of Troy, 112 Misc.2d 384, 447 N.Y.S.2d 124 (Sup.Ct., Rensselaer Co., 1982); Allison v. State Painting & Decorating Co., 141 Misc.2d 797, 535 N.Y.S.2d 310 (Civ.Ct., N.Y.Co., 1988). A trial de novo means exactly what the words denote which is a new trial of all of the causes o......
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Brenhouse v. Anthony Industries, Inc.
...award. The plaintiff's demand for a trial de novo served to vacate the arbitration award (see, Allison v. State Painting & Decorating Co., 141 Misc.2d 797, 535 N.Y.S.2d 310; Flum v. Goldman Band Concerts, 128 Misc.2d 42, 487 N.Y.S.2d The court awarded the defendant a judgment on its counter......
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