The Arbitrator Charles Sloane 2106 rule: deemed arbitrary.March 19, 2015

Auto One Ins. Co. v Hillside Chiropractic, P.C., 2015 NY Slip Op 01750 (1st Dept. 2015)(1st Dept 2015)

“We find that the no-fault arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see 11 NYCRR § 65-4.5[o] [1] [“The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.”], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator’s determination.”

How many times has an arbitrator declined to accept your proofs because they do not comply with 2106?  In my opinion, one time too many.  The Appellate Division saw the light,

12 Responses

  1. Kurt Lundgren says:

    Jason – interesting post … how many times CPLR 2106 objection …. never for me. Really. I cant think of one time that a defense attorney claimed that a document or opinion was hearsay, or that I did the same. But I don’t see your side of it … Respondent’s side.

    So never a problem with me … till now. Next case between us …. CPLR 2106 objections across the board! Lol.

  2. Charles Sloane says:

    Jason: This is not a Charles Sloane Rule. Just following the rules of Court. If the legislature does not find chiropractors, podiatrist, psychologists, acupuncturists, et al to be sufficient professionals to be able to affirm, who am I to argue. I find it interesting that though this case was strictly a second department case, you felt you needed to bring it in First Dept in order to get the result you wanted. Even the lower Court in Supreme-NY agreed with me and the Master. Talk about Forum Shopping.

  3. JT says:

    Arbitrator Sloane, You know I love you and I have been ribbing you about this now for years. The Second Department has expressed their dislike towards vacating arbitration awards. Why engage on a suicide mission? The First Department will engage in a more robust review if the facts support it.

    Was it forum shopping? No more than when a Plaintiff chooses Civil Kings or opens an office in Nassau County to obtain access to the Long Island and Queens arbitrators.

  4. Charles Sloane says:

    Touche’. Same here. Why not bring your next appeal in 2nd Dept and see if you get the same result!!..

  5. Yog Sothothery says:

    Not sure I see the court’s reasoning here – even if I am in favor of a relaxed evidentiary standard in arbitrations for both sides… How was it arbitrary?

  6. Charles Sloane says:

    Yog: The First Dept was arbitrary. I wasn’t. I used prior case law and prior arbitrator decisions. The First Dept is agenda driven and that is why the Article 75 was brought there.

  7. Captain America says:

    Charles let me tell you from experience in fighting the Nazis.

    This is how Nazi Germany started.

  8. Kurt Lundgren says:

    Why dont I take all those Unitrin decisions issued by an arbitrator in the first department and commence article 75’s in the second department? Heck, maybe the 3rd Department too.

    Brilliant Jason. Only one thing …. that kind of stuff really effects the integrity of the system. Its not right.

  9. The Hater says:

    There are not many men I can say this about in this business but let me say this.

    Charles Sloane is a good man.

  10. JT says:

    Arbitrator Sloane is a good man, a good arbitrator and learned about the law. We had a disagreement on the law. Today I won. Tomorrow he could win. Appealing anything is a crap-shoot. I enjoy appearing before him. I try to put myself on the calendar when it is an appearance before him.

  11. Alan Klaus says:

    Absolutely ridiculous decision. Once again loony 1st dept. Decision. Arbitrator Sloan had every right to follow the CPLR. LUDICROUS!

  12. Alan Klaus says:

    Absolutely ridiculous decision. Once again loony 1st dept. Decision. Arbitrator Sloane had every right to follow the CPLR. LUDICROUS!