Broderick v. Suffolk County Bar Ass'n

157 A.D.2d 780, 550 N.Y.S.2d 378, 1990 N.Y. App. Div. LEXIS 728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1990
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 75 to vacate or modify an arbitration award dated November 17, 1987, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered March 22, 1988, which, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioner has failed to demonstrate that the arbitrators improperly prevented him from submitting relevant evidence or from conducting cross-examination during the arbitration hearing. The record does not contain any factual evidence to support the petitioner’s assertions in this regard. While this lack of evidence is attributable to the fact that the minutes of the hearing were not recorded, the petitioner cannot rely upon this fact to support his claims, inasmuch as he participated in the arbitration with knowledge that no record was being kept and thereby waived any issue regarding the lack of such record (see, CPLR 7506 [f]; Matter of Reale [Healy N Y. Corp.], 54 AD2d 1039; see also, 8 Weinstein-Korn-Miller, NY Civ Prac ¶ ¶ 7506.19, 7506.26).

Accordingly, he has failed to sustain his burden of demonstrating a ground for vacatur or modification of the award, and the proceeding was properly dismissed. Brown, J. P., Kunzeman, Sullivan and Balletta, JJ., concur.