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Amy Williams v. John Rastegar

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 13, 2012

AMY WILLIAMS,
RESPONDENT,
v.
JOHN RASTEGAR, APPELLANT.

Appeal from an order of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), dated October 12, 2011, deemed from a judgment of the same court entered October 19, 2011 (see CPLR 5512 [a]).

Williams v Rastegar

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2012

PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ

The judgment, entered pursuant to an arbitrator's award made on defendant's default and the October 12, 2011 order denying defendant's motion to vacate the arbitrator's award and to restore the matter to the arbitration calendar, awarded plaintiff the principal sum of $1,881 and implicitly dismissed defendant's counterclaim.

ORDERED that the judgment is reversed, without costs, the October 12, 2011 order denying defendant's motion to vacate the arbitrator's award and to restore the matter to the arbitration calendar is vacated, and defendant's motion to vacate the arbitrator's award and to restore the matter to the arbitration calendar is granted on condition that defendant pay into the District Court an amount equal to the total fees payable by the administrative office for the courts to the panel of arbitrators.

In this small claims action, plaintiff seeks to recover, among other things, a refund of her rent money, and defendant filed a counterclaim seeking to recover for property damage and rent arrears. Defendant failed to appear at a scheduled arbitration proceeding, mandated by the Rules of the Chief Judge (22 NYCRR part 28), and the arbitrator awarded plaintiff the principal sum of $1,881 and dismissed defendant's counterclaim. By order dated October 12, 2011, the District Court denied defendant's motion to vacate the arbitrator's award and to restore the matter to the arbitration calendar, finding that defendant had failed to establish good cause for his failure to appear at the hearing (see Rules of the Chief Judge [22 NYCRR] § 28.7 [a]; see also Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426, 427 [1989]). A judgment awarding plaintiff the principal sum of $1,881 and implicitly dismissing defendant's counterclaim was entered. Defendant's appeal from the order is deemed to be from the judgment (see CPLR 5512 [a]).

In our opinion, defendant established good cause for vacating the arbitrator's award, as he believed that his request for an adjournment, made the day before the hearing was to be held, had been approved by the court. In view of the foregoing, the judgment is reversed, the order dated October 12, 2011 is vacated, and defendant's motion to vacate the arbitrator's award and to restore the matter to the arbitration calendar is granted on condition that defendant pay into the District Court an amount equal to the total fees payable by the administrative office for the courts to the panel of arbitrators as set forth in Rules of the Chief Judge (22 NYCRR) § 28.7 (a).

LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 13, 2012

20121213

© 1992-2012 VersusLaw Inc.



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