B.Y., M.D., P.C. v GEICO Indem. Co., 2011 NY Slip Op 50036(U)(App. Term 2d Dept. 2011)
For those who practice in the outer lying areas of New York, cases with a value of less than $6,000 are referred to mandatory Part 28 arbitration upon the filing of a Notice of Trial or Note of Issue. An issue that has been kicking around for years is what is sufficient participation at the hearing to allow the loser to file a trial-de-novo. This case discusses that issue.
“The Rules of the Chief Judge (22 NYCRR) § 28.12 (a) provides that a demand for a trial de novo “may be made by any party not in default.” A party’s failure to appear at an arbitration hearing constitutes a default (see Rules of the Chief Judge [22 NYCRR] § 28.7 [a]). Even where a defendant has appeared by counsel at an arbitration hearing, if such appearance is “without his client[]” and the defendant’s counsel “refus[es] to participate in the hearing,” the defendant is [*2]similarly deemed to have defaulted (Bitzko v Gamache, 168 AD2d 888, 888 [1990]; see also Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426 [1989]). However, where, as here, a defendant’s attorney appears on behalf of his client at the arbitration hearing without any witnesses, but otherwise participates in the hearing by attempting to refute the plaintiff’s case, the defendant has not defaulted”
