Amedeo v Century 21 Bayway Realty Corp.

[*1] Amedeo v Century 21 Bayway Realty Corp. 2004 NY Slip Op 50214(U) Decided on March 26, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-379 S C NO. 2003-380 S C

ALISA - ANN AMEDEO, Respondent,

against

CENTURY 21 BAYWAY REALTY CORP., Appellant. ALISA - ANN AMEDEO, Respondent, CENTURY 21 BAYWAY REALTY CORP., Appellant.

Appeals by defendant from an order of the Small Claims Part of the District Court, Suffolk County (P. Barton, J.), dated February 3, 2003, and an order of the

same court, dated January 21, 2003, which in each case denied its motion pursuant to 22 NYCRR 28.7 (a) to vacate a default judgment rendered against it.

On the court's own motion, appeals consolidated for purposes of disposition.

Orders unanimously affirmed without costs. [*2]

Plaintiff brought two small claims actions to recover sales commissions allegedly due her from defendant for two separate real estate transactions. Defendant failed to appear on the date scheduled for the mandatory arbitration hearing held pursuant to 22 NYCRR Part 28, and arbitration awards in the amount of $2,904 and $3,000 were rendered against it, whereupon defendant moved to vacate the judgments entered thereon.

Pursuant to 22 NYCRR 28.7 (a), where a party fails to appear at a mandatory arbitration hearing, that party may seek vacatur of the judgment and restoration to the arbitration calendar "upon good cause shown." Although defendant stated that the parties had been involved in settlement negotiations and that plaintiff had been paid the commissions due her, the documents annexed to defendant's motion papers did not reflect that fact. To the extent that the defaulting party must demonstrate "a valid
reason for his failure to proceed with the arbitration" (see Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426, 427 [1989]), defendant failed to do so. Accordingly, the court below did not err in declining to vacate the default judgments.
Decision Date: March 26, 2004