Polygon Co., Division of Plas-Steel Products, Inc. v. Kotten Mach. Co. of Brooklyn, Inc.
| Decision Date | 14 November 1980 |
| Docket Number | DURO-TEST,PLAS-STEEL |
| Parties | POLYGON CO., DIVISION OFPRODUCTS, INC., Plaintiff, v. KOTTEN MACHINE COMPANY OF BROOKLYN, INC., Defendant.CORPORATION, Plaintiff, v. TREND ENTERPRISES, Defendant. |
| Court | New York District Court |
DECISION ON MOTION
Both of these cases involve applications to vacate arbitration awards issued on the defendants failure to appear at the arbitration proceedings. Since each case involves similar facts and the same provisions of the arbitration rules, they will be considered together.
The facts in each case are as follows:
Duro Test v. Trend Enterprises
This action was commenced to recover $450.04 as the balance allegedly due from defendant for merchandise sold and on an account stated. After issue was joined, the matter was noticed for trial, and pursuant to the rules established by the Chief Administrative Judge (22 NYCRR Part 28) the case was placed on the arbitration calendar and a hearing date of July 23, 1980 was set.
On July 9, 1980, after having received notice of the hearing, defendant's attorney submitted to the panel an affidavit requesting an adjournment of the hearing. The affidavit indicated that the defendant's president would be unavailable on July 23 due to a prior arbitration commitment, and that he would be out of the country from August 6, 1980 to September 15, 1980. Defendant requested that the arbitration hearing be reset taking into consideration the dates on which the defendant's witness would be unavailable.
On July 23, 1980 the arbitration panel met and determined to grant an adjournment until August 20, 1980. Upon notification of the adjourned date, the defendant's attorney once again corresponded with the panel and again advised the panel that the defendant's witness would be unavailable on August 20 and he requested that the hearing be re-scheduled for September 20, 1980. This correspondence was not answered. Despite defendants affidavits and correspondence the arbitration panel met on August 20 and a default judgment was granted to the plaintiff.
This action was also commenced to recover the alleged balance due on merchandise sold to defendant and on an account stated. As in the Duro Test case, after issue was joined and the case noticed for trial, the matter was assigned to an arbitration panel and was scheduled for a hearing on July 23, 1980. On that date a representative of the defendant appeared without counsel. It was the opinion of the panelists that the defendant should be represented by counsel and for that reason the arbitration was adjourned until August 20, 1980. Defendants representative was informed that no further adjournment would be considered.
Nevertheless, on August 19, 1980 defendant's attorney called the chairman of the arbitration panel and requested a one week adjournment due to the fact that defendant's witness was in Massachusetts on business. The chairman indicated to counsel that he had no objection to a one week adjournment, and that counsel should inform the other parties. Defendant's counsel complied with this request. However, despite the granting of counsel's request, the panel met on August 20 and a default judgment was granted to the plaintiff.
The Court initially notes that had the defaults in these cases been entered in a court of law, then CPLR § 5015 and decided cases would have mandated that the defendant establish both an excusable default and a meritorious defense in order to vacate the judgments (Inserra v. Porto, 33 A.D.2d 1092, 308 N.Y.S.2d 255...
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Juniper Walk Condominium v. Patriot Mgt. Corp., 2004 NY Slip Op 24091 (NY 3/26/2004)
...22 NYCRR 28.7 (a) need not demonstrate the existence of a meritorious cause of action or defense (see Polygon Co. Div. of Plas-Steel Prods. v. Kotten Mach. Co. of Brooklyn, 106 Misc 2d 903 [Suffolk Dist Ct 1980]). Under the doctrine of stare decisis, a lower court must follow a decision of ......
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JUNIPER WALK v. PATRIOT MGT.
...22 NYCRR 28.7 (a) need not demonstrate the existence of a meritorious cause of action or defense (see Polygon Co. Div. of Plas-Steel Prods. v Kotten Mach. Co. of Brooklyn, 106 Misc 2d 903 [Suffolk Dist Ct 1980]). Under the doctrine of stare decisis, a lower court must follow a decision of a......
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Goldstein v. Fox
...See Sassower v. Higbee, 96 A.D.2d 588, 465 N.Y.S.2d 280 (2nd Dept.1983); Polygon Co., Division of Plas-Steel Products, Inc., v. Kotten Machine Co. of Brooklyn, Inc., 433 N.Y.S.2d 400, 402, 106 Misc.2d 903 (District Ct., Suffolk Co., 3rd District 1980). As "the rules of procedure set up by 2......