SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 18, 2011
RICHARD MORGAN DO, P.C. AS ASSIGNEE OF ROGER DARBASIC,
PROGRESSIVE NORTHEASTERN INSURANCE COMPANY, RESPONDENT.
Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated September 8, 2009. The order denied plaintiff's motion to strike defendant's demand for a trial de novo.
Richard Morgan DO, P.C. v Progressive Northeastern Ins. Co.
Decided on January 18, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 18, 2011
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, among other matters, to plaintiff's prima facie case, defendant's timely denial of the claim, the physician-peer reviewer's medical qualifications, and the admissibility of the documents on which the reviewer relied. The parties participated in mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28), which resulted in a ruling in plaintiff's favor, whereupon defendant served and filed a demand for a trial de novo (Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). Plaintiff moved to strike the demand, arguing that defendant's limited participation in the arbitration, which consisted of defendant's attorney's appearance and his offer of various documents, which were excluded upon plaintiff's hearsay objection, amounted to a default, barring defendant from demanding a trial de novo. Defendant opposed, and the District Court denied the motion, finding that, on the facts, defendant had not defaulted. Plaintiff appeals and we affirm.
The Rules of the Chief Judge provide that a demand for a trial de novo "may be made by any party not in default" (Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). A party's failure to appear for an arbitration hearing constitutes a default (Rules of the Chief Judge [22 NYCRR] § 28.7 [a]), as does a party's appearance by counsel who otherwise "refus[es] to participate in the hearing" (Bitzko v Gamache, 168 AD2d 888 ; see also Finamore v Huntington Rehabilitation Assn., 150 AD2d 426 ). However, where, as here, a party's attorney appears at the arbitration, participates in the hearing and submits evidence which, if admissible, would have tended to rebut the plaintiff's case, there is no default within the contemplation of the Rules of the Chief Judge merely because the arbitrator ruled the proof inadmissible (see Tripp v Reitman Blacktop, 188 Misc 2d 317 [App Term, 9th & 10th Jud Dists 2001]; San-Dar Assoc. v Adams, 167 Misc 2d 727 [App Term, 1st Dept 1996]).
Accordingly, the District Court properly denied plaintiff's motion to strike defendant's demand for a trial de novo.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur. Decision Date: January 18, 2011
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