Jedor Holding Corp. v Barrone

[*1] Jedor Holding Corp. v Barrone 2005 NY Slip Op 51785(U) [9 Misc 3d 1125(A)] Decided on November 3, 2005 Civil Court Of The City Of New York, New York County Gesmer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2005
Civil Court of the City of New York, New York County

JEDOR HOLDING CORP., Plaintiff,

against

ERICA BARRONE, Defendant.



12893/05



Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park, NY for Jedor Holding Corp., plaintiff. Erica Barrone, defendant pro se.

Ellen Gesmer, J.

This matter came before me in Part 11, the trial part for cases where at least one party is self-represented. On the call of the calendar, plaintiff's counsel made an application for an adjournment, stating that her witness was not available. Defendant, appearing pro se, vigorously opposed the application, and pointed out that the complaint had been dismissed at arbitration because plaintiff's witness had also not appeared on that day. I then reviewed the Court file and determined, for the reasons set forth below, that the case should not have appeared on the trial calendar because plaintiff was not entitled to file a Demand for a Trial De Novo. Accordingly, plaintiff's application is denied, and judgment shall be entered confirming the arbitration award and dismissing the action.

PROCEDURAL HISTORY

On March 30, 2005, plaintiff served on defendant a Summons and Complaint, alleging that defendant owed plaintiff $6,296.71, representing rent for the period from May through November 2004, plus $500.00 for its reasonable attorneys' fees. On or about May 6, 2005, defendant filed an answer, asserting that the summons and complaint were not properly served; [*2]that she had surrendered possession of the apartment prior to the period for which rent was sought; that the plaintiff had failed to mitigate its damages; and that there were conditions in the apartment which caused her to be constructively evicted. Defendant also asserted a counterclaim for $2,000.00, for reimbursement for cleaning her home of fallen plaster and bricks and for replacing items which were damaged and broken by the falling plaster.

On or about May 6, 2005, the parties were notified that the case would appear in the pro se pre arbitration part on May 23, 2005. On that date, the case was adjourned to July 21, 2005 for arbitration. On July 21, plaintiff's counsel appeared in the arbitration part, but had no witness. Defendant appeared without counsel. The parties proceeded to arbitration. Plaintiff was unable to prove its case, and the arbitrator entered an award in favor of defendant and against plaintiff on the underlying cause of action. The arbitrator did not enter any award on defendant's counterclaim, even though the Arbitration Case Report correctly noted that defendant had asserted a counterclaim in the amount of $2,000.00.

On August 1, 2005, the Report and Award was filed in the clerk's office, and a copy of it was mailed to each party. At the bottom of the Report and Award appeared the following:

"A party not in default, may, within 30 days of the filing of the award... make a demand for a Trial De Novo.... A party in default must apply to the Court for restoration and pay a Restoration fee of $75.00."

(Emphasis in the original).

On or about August 15, 2005, plaintiff served a Demand for a Trial De Novo on defendant, and filed it in the Court, together with proof of service, on August 18, 2005. The case was then assigned to the Part 11 calendar on October 14, 2005. On that day, the parties appeared before me, and plaintiff's counsel requested an adjournment. Defendant, acting pro se, vigorously opposed it.

ANALYSIS

A party has a right to file a demand for a trial de novo only when it was not in default at the arbitration. (22 NYCRR 28.12[a]). If a party was in default at the arbitration, it may vacate the resulting Report and Award only by making a motion to vacate, pursuant to 22 NYCRR 28.7(a), and the Court may grant the motion and restore the case to the arbitration calendar only upon "good cause shown." Moreover, any such order must be conditioned on the moving party paying into the court "an amount equal to the total fees payable by the administrative office for the courts to the panel." (22 NYCRR 28.7[a]). Therefore, the question to be determined in this case is whether or not the plaintiff was in default on July 21, 2005 when its counsel appeared in the arbitration part without a witness. [*3]

This Court has been confronting for more than twenty years the question of how to treat a party who appears for mandatory arbitration without a witness. In Cable Films v Ampro Video Productions, Inc. (125 Misc 2d 874, 876 [Civ Ct, NY County1984], Judge (now Justice) Saxe was faced with a motion to strike a demand for a trial de novo where the plaintiff had appeared at the arbitration without a witness. He held that "a technical appearance by plaintiff's attorney at arbitration, such as occurred here, constitutes a default," and explained:Many attorneys regularly appear on behalf of their clients at arbitration, without their clients being present, and with no intention of participating in the arbitration process. Instead, they note their appearance on the record, permit an award to be entered against their client and immediately file a demand for a trial de novo. Notwithstanding the over-all success of the compulsory arbitration system, this practice appears to be an abuse of the system which should not be tolerated.

(Id. at 876). Accordingly, he granted the motion. In a similar case, then Judge (now Justice) Silbermann characterized plaintiff's counsel's conduct as "a ploy to circumvent mandatory arbitration," and went on to explain: Mandatory arbitration for cases in which the ad damnum clause is under $ 6,000 has been successful in alleviating calendar congestion of the Civil Court. If permitted to succeed such a ruse would create a loophole which would completely undermine compulsory arbitration and incidentally waste the time of the arbitrators and the adverse parties. To permit an attorney to appear at a hearing, not present any evidence and then be free to demand a trial de novo, would circumvent the statute providing for compulsory arbitration and render such law a nullity thereby defeating the intent of the arbitration procedure.

(Honeywell Protection Servs. v Tandem Telecomm., Inc., 130 Misc 2d 130, 131 (Civ Ct, NY County 1985]). The Court then granted defendant's motion to strike the Demand for a Trial de Novo, unless the plaintiff stipulated that it would not introduce any evidence at trial other than that introduced at the arbitration.

A few years later, the Second Department adopted the reasoning of those two cases, and held that "the failure of the plaintiff to appear at the arbitration proceeding constituted a default on his part, and precludes him from demanding a trial de novo." (Finamore v Huntington Cardiac Rehabilitation Assn, 150 AD2d 426 [2d Dept 1989]). That holding was then adopted by the Appellate Term for this Department in San-Dar Assocs. v Adams (167 Misc 2d 727, 728 [App Term, 1st Dept 1996]). Consequently, a plaintiff who appears at an arbitration without a witness may not seek a trial de novo; rather, the plaintiff's only remedy is to move to vacate the dismissal pursuant to 22 NYCRR 28.7(a).[FN1] A motion pursuant to that section can only be granted [*4]on a showing of good cause (Bitzko v Gamache, 168 AD2d 888 [3d Dept 1990]; Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d at 426; Tripp v B. Reitman Blacktop, Inc., 188 Misc 2d 317, 318 [App Term, 2d Dept 2001]; Juniper Walk Condo. v Patriot Mgmt. Corp., 3 Misc 3d 748, 750 [City Ct, White Plains 2004]; Martbeat Medical Supply, Inc. v Geico Ins. Co., 5 Misc 3d 1019(A) [Dist Ct, Nassau County 2002] ), and upon payment of the statutory fee. Plaintiff in this case may not circumvent the requirement by simply filing a Demand for a Trial De Novo, since, by doing so, it would both avoid the statutory fee as well as the obligation for showing "good cause" for its default. Even more importantly, by doing so, it would avoid submitting the merits of its claim to an arbitration panel. To permit it to do so would subvert the entire court arbitration procedure. (Friedman v Reagan, 107 AD2d 457, 460 [4th Dept 1985]). Consequently, I am vacating the plaintiff's Demand for a Trial De Novo.

Under 22 NYCRR 28.11(b), if there has been no demand for a trial de novo and the award has not been vacated, the Clerk is directed to enter judgment. All of the requirements for application of this section have now been met. Specifically, as set forth above, plaintiff's demand for a trial de novo has been vacated. Defendant did not file a demand for a trial de novo, and her time to do so has now passed. Moreover, the award has not been vacated. Consequently, all of the requirements for the entry of judgment pursuant to 22 NYCRR 28.11(b) have been met. Accordingly, judgment shall enter based on the Award, and both the underlying action and defendant's counterclaim are dismissed.

Dated: November 3, 2005

ELLEN GESMER

Judge, Civil Court Footnotes

Footnote 1:It has been my observation, while sitting both in Part 11 and in Part 41, the No-Fault Part, that many lawyers are unsure about how to seek relief from an adverse arbitration award which was entered because the lawyer appeared without a witness on the date scheduled for arbitration. Given that it is not uncommon for lawyers to appear for arbitration without a witness, it is astonishing that more attorneys are not aware that the only proper remedy for the resulting dismissal lies under 22 NYCRR 28.7(a).