Penney v. Elmira Professional Communications, Inc.
| Decision Date | 11 June 1987 |
| Citation | 131 A.D.2d 938,516 N.Y.S.2d 533 |
| Parties | Marian A. PENNEY, Appellant, v. ELMIRA PROFESSIONAL COMMUNICATIONS, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Edward P. Abbott, Ithaca, for appellant.
Karen Silverstein, Ithaca, for respondents.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.
Appeal from an order of the Supreme Court at Special Term (Ellison, J.), entered January 2, 1986 in Tompkins County, which vacated a prior order of said court directing entry of judgment in accordance with an amended arbitration award.
Plaintiff commenced an action against defendants seeking $100,000 in damages for alleged fraud, breach of contract and conversion. The case was transferred to arbitration purportedly under the authority of CPLR 3405 and the regulations promulgated pursuant to that statute. An arbitration hearing was conducted before a panel of three arbitrators. During the course of the hearing, the parties reached an apparent settlement and the arbitrators rendered an award in plaintiff's favor in accordance therewith. Plaintiff was to receive $251.08 per month for 10 years representing the amortization of the settlement amount of $17,500 at 12% interest over that period. In preparing the necessary documents, defendants included a prepayment provision. Plaintiff objected to the inclusion of the prepayment provision and moved, by order to show cause, for enforcement of the stipulation as contained in the arbitration award. Special Term remitted the case to the arbitrators for a determination as to whether the award should allow prepayment.
On October 23, 1985, the arbitrators rendered an amended award which did not include a prepayment provision. Thereafter, plaintiff moved for an order directing entry of judgment in accordance with the amended award. Special Term granted the motion by order dated November 8, 1985. On November 21, 1985, however, defendants filed a demand for a trial de novo pursuant to 22 NYCRR 28.12. In response thereto, the court, by order dated December 30, 1985, vacated its November 8, 1985 order, on the ground that entry of judgment prior to the expiration of defendants' time to file a demand for a trial de novo had been premature. This appeal by plaintiff ensued.
Plaintiff contends that Special Term erred in vacating its November 8, 1985 order which had directed entry of judgment in accordance with the amended arbitration award. We cannot agree. CPLR 3405 provides that the rules promulgated by the Chief Judge of the Court of Appeals "must permit a jury trial de novo upon demand by any party following the determination of the...
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...Because compulsory arbitration is unauthorized where a right to trial by jury exists (see, Penney v. Elmira Professional Communications, 131 A.D.2d 938, 939, 516 N.Y.S.2d 533; Glass v. Thompson, 51 A.D.2d 69, 73-76, 379 N.Y.S.2d 427), the pivotal question presented is whether plaintiffs enj......
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Buckingham Mfg. Co., Inc. v. Frank J. Koch, Inc.
...as a settlement embodies and does not vary from the terms of the settlement actually agreed upon (cf., Penney v. Elmira Professional Communications, 131 A.D.2d 938, 516 N.Y.S.2d 533). The Report was not expressly made contingent on approval of defendant's president, and defense counsel acti......
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...de novo after an arbitration hearing be given the right to demand that the trial be by jury (Penney v. Elmira Professional Communications, Inc., 131 A.D.2d 938, 939, 516 N.Y.S.2d 533 [3rd Dept.1987]; Nuro Transp. v. Judges of the Civ. Ct. of the City of New York for the County of Queens, 95......