Medigroup Inc. v. Fisher

87 A.D.2d 837, 449 N.Y.S.2d 264, 1982 N.Y. App. Div. LEXIS 16305

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1982
• Status: Published

Opinion

In a breach of contract action, defendant appeals from an order of the Supreme Court, Nassau County (Kelly, J.), dated January 27, 1981, which denied his motion to vacate an arbitration award of $1,000. Order reversed, with $50 costs and disbursements, and case remitted to the Supreme Court, Nassau County, for a hearing to determine whether defendant can demonstrate good cause for vacating the arbitration award entered against him, pursuant to 22 NYCRR 28.7 (a). We hold Special Term was in error in applying CPLR 7511. While CPLR 7511 applies to the vacating and modifying of an arbitration award, it applies only when the parties have a written agreement providing for arbitration. In the case at bar the agreement dated January 3,1978 does not contain a written provision to submit any controversy to arbitration; thus CPLR 7511 is not applicable. 22 NYCRR 28.2 (b) empowers the Supreme Court to transfer to the Arbitration Calendar actions such as the instant matter. 22 NYCRR 28.7 (a) provides for vacating the arbitration award where a party fails to appear at the hearing and restoring it to the Arbitration Calendar upon demonstrating “good cause”. Thus, since Special Term did not reach the issue of whether defendant had demonstrated good cause under 22 NYCRR 28.7 (a), this action should be remitted to Special Term to determine whether defendant has established good cause for his failure to appear at the hearing, so as to permit the restoration of the action to the Arbitration Calendar. Thompson, J. P., Brown, Niehoff and Boyers, JJ., concur.