Finamore v. Huntington Cardiac Rehabilitation Ass'n
| Decision Date | 08 May 1989 |
| Citation | 150 A.D.2d 426,541 N.Y.S.2d 36 |
| Parties | Ronald A. FINAMORE, Appellant, v. HUNTINGTON CARDIAC REHABILITATION ASSOCIATION, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Richard J. Finamore, Great Neck, for appellant.
Sarisohn, Sarisohn, Carner, Steindler, LeBow & Braun, Commack (Walter G. Steindler and Steven L. Sarisohn, of counsel), for respondents.
Before BRACKEN, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for loss of property, which was submitted to compulsory arbitration pursuant to 22 NYCRR 28.2, the plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated December 16, 1987, which affirmed an order of the District Court of the County of Suffolk, Third District (Hall, J.), dated June 26, 1985, which granted the defendants' motion to vacate the plaintiff's demand for a trial de novo.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced the instant action in the District Court of the County of Suffolk, Third District, seeking a money judgment in a sum less than $6,000. Pursuant to 22 NYCRR 28.2(b), the action was referred to compulsory arbitration.
The plaintiff failed to appear at the arbitration. The plaintiff's attorney, who did appear, did nothing except submit the plaintiff's complaint, the answer, and a bill of particulars. The arbitrator made an award in favor of the defendants, stating that the plaintiff had "no cause of action".
The plaintiff then served a demand for a trial de novo. The defendants' motion to vacate the demand for a trial de novo was granted by the District Court of the County of Suffolk, Third District, in an order dated June 26, 1985. The Appellate Term affirmed.
22 NYCRR 28.12(a) limits the right to demand a trial de novo to parties who are not in default (Friedman v. Reagan, 107 A.D.2d 457, 460, n. 4, 487 N.Y.S.2d 431). In Friedman v. Reagan, supra, the plaintiff's attorney, but not the plaintiff, had appeared at an arbitration proceeding which culminated in a default judgment against the plaintiff (22 NYCRR 28.7[a]. The plaintiff's failure to appear at the arbitration proceeding constituted a default on his part, thus precluding him from demanding a trial de novo (22 NYCRR 28.12[a]. However, it was held that since the plaintiff's failure to appear was excusable, the Supreme Court should have vacated the default judgment and should have restored the...
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Rosman & Co. v. Chideckel
...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 & 10t......
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Bitzko v. Gamache
...and his refusal to participate in the hearing constituted a default on the part of defendants (see, Finamore v. Huntington Cardiac Rehabilitation Ass'n, 150 A.D.2d 426, 541 N.Y.S.2d 36). Although 22 NYCRR 28.7(a) provides for vacating an arbitration award where a party defaults upon a showi......
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Armen v. Einsidler Mgmt.
...A party's failure to proceed at an arbitration hearing constitutes a default (see Finamore v Huntington Cardiac Rehabilitation Assn., 150 A.D.2d 426 [1989]; Rosman & Co. v Chideckel, 44 Misc.3d 137 [A], 2014 NY Slip Op 51248[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Bitzko......
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Armen v. Einsidler Mgmt.
...A party's failure to proceed at an arbitration hearing constitutes a default (see Finamore v Huntington Cardiac Rehabilitation Assn., 150 A.D.2d 426 [1989]; Rosman & Co. v Chideckel, 44 Misc.3d 137 [A], 2014 NY Slip Op 51248[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Bitzko......