Olan v. Allstate Insurance

212 A.D.2d 362, 622 N.Y.S.2d 33, 1995 N.Y. App. Div. LEXIS 908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1995
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered on or about June 13, 1994, which granted the petition, vacated the arbitration award, and remanded the matter for a rehearing before a new arbitrator, unanimously affirmed, without costs.

The IAS Court properly found that the arbitrator’s refusal to grant petitioner an adjournment in order to procure an independent qualified radiologist who could testify to the nature of the undisputed injury and demonstrate that it is a fracture, thus qualifying as a "serious injury” under Insurance Law § 5102 (d), constituted an abuse of discretion tantamount to misconduct. An arbitrator is guilty of misconduct, and an award may be vacated, when his or her actions result in foreclosing the presentation of material and pertinent evidence to the prejudice of the party seeking the introduction of the proof (Matter of Omega Contr. v Maropakis Contr., 160 AD2d 942). Concur—Sullivan, J. P., Ellerin, Ross, Asch and Williams, JJ.