Appellate Terms of the Supreme Court of New York, 1996

San-Dar Associates v. Adams

Appellate Terms of the Supreme Court of New York · Decided January 16, 1996

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

Counsel

APPEARANCES OF COUNSEL, Fischbein Badillo Wagner Itzler, New York City (Bruce N. Lederman and Louis Ryckmans of counsel), for appellant. Amos Weinberg, Great Neck, for respondent.

Opinion of the Court

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 *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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.