San-Dar Associates v. Adams

Appellate Terms of the Supreme Court of New York

San-Dar Associates v. Adams

167 Misc. 2d 727, 643 N.Y.S.2d 880, 1996 N.Y. Misc. LEXIS 185

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 16, 1996

StatusPublished

Cited by3 cases

This text of 167 Misc. 2d 727 (San-Dar Associates v. Adams) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

San-Dar Associates v. Adams, 167 Misc. 2d 727, 643 N.Y.S.2d 880, 1996 N.Y. Misc. LEXIS 185 (N.Y. Ct. App. 1996).

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Opinion

OPINION OF THE COURT

Per Curiam.

Order entered May 23, 1995 reversed, with $10 costs, and plaintiff’s motion to strike defendant’s demand for a trial de novo is denied.

Plaintiff’s contract action for damages was referred to compulsory court arbitration (22 NYCRR 28.2 [b]). Defendant did not appear at the hearing before the arbitrator; however, his attorney did participate and cross-examined plaintiff’s witness. Subsequent to an award in plaintiff’s favor, defendant [728]*728made a demand for a trial de novo. That relief is available to "any party not in default” (22 NYCRR 28.12 [a]). Civil Court then granted plaintiffs motion to strike the demand, reasoning that defendant’s determination to absent himself from the arbitration was a default which precluded him from demanding a new trial.

While the failure of a plaintiff to appear or present evidence through his attorney constitutes a default for purposes of compulsory arbitration (Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426), the same cannot be said when a defendant, by his attorney, appears and disputes the plaintiff’s evidence at the hearing. As a general rule, the plaintiff bears the burden of proof in a civil case (Prince, Richardson on Evidence § 3-210 [Farrell 11th ed]) and the defendant is under no obligation to present evidence or witnesses.

Here, the arbitrator’s own case report indicates that the matter was contested, since the amount awarded ($1,629) was substantially less than the amount demanded ($2,650), and the box denominated "failed to appear” was not checked. We therefore conclude that defendant’s appearance by attorney was not a default which would forfeit the remedy of a trial de novo (Valot v Allcity Ins. Co., 131 Misc 2d 814). "[T]he arbitration rules, in particular the procedure governing trial de novo, should not be interpreted too narrowly since the compulsory arbitration program initially deprives the parties of their right to a jury trial” (supra, at 815).

Parness, J. P., McCooe, and Freedman, JJ., concur.

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OPINION OF THE COURT

Per Curiam.

Order entered May 23, 1995 reversed, with $10 costs, and plaintiff’s motion to strike defendant’s demand for a trial de novo is denied.

Plaintiff’s contract action for damages was referred to compulsory court arbitration (22 NYCRR 28.2 [b]). Defendant did not appear at the hearing before the arbitrator; however, his attorney did participate and cross-examined plaintiff’s witness. Subsequent to an award in plaintiff’s favor, defendant [728]*728made a demand for a trial de novo. That relief is available to "any party not in default” (22 NYCRR 28.12 [a]). Civil Court then granted plaintiffs motion to strike the demand, reasoning that defendant’s determination to absent himself from the arbitration was a default which precluded him from demanding a new trial.

While the failure of a plaintiff to appear or present evidence through his attorney constitutes a default for purposes of compulsory arbitration (Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426), the same cannot be said when a defendant, by his attorney, appears and disputes the plaintiff’s evidence at the hearing. As a general rule, the plaintiff bears the burden of proof in a civil case (Prince, Richardson on Evidence § 3-210 [Farrell 11th ed]) and the defendant is under no obligation to present evidence or witnesses.

Here, the arbitrator’s own case report indicates that the matter was contested, since the amount awarded ($1,629) was substantially less than the amount demanded ($2,650), and the box denominated "failed to appear” was not checked. We therefore conclude that defendant’s appearance by attorney was not a default which would forfeit the remedy of a trial de novo (Valot v Allcity Ins. Co., 131 Misc 2d 814). "[T]he arbitration rules, in particular the procedure governing trial de novo, should not be interpreted too narrowly since the compulsory arbitration program initially deprives the parties of their right to a jury trial” (supra, at 815).

Parness, J. P., McCooe, and Freedman, JJ., concur.

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Bluebook (online)

167 Misc. 2d 727, 643 N.Y.S.2d 880, 1996 N.Y. Misc. LEXIS 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-dar-associates-v-adams-nyappterm-1996.

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