Medivix, Inc. v. Shnayer

In an action, inter alia, to recover damages for fraud, which was stayed pending the determination of a [912] related arbitration between several of the parties, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Roberto, J.), dated June 6, 1988, which, upon an order of the same court dated May 16, 1988, which, inter alia, confirmed the arbitration award and denied that branch of the plaintiffs’ cross motion which was to stay the entry of the judgment, is in favor of the defendant and against the plaintiff American Prescription Plan, Inc., in the amount of $73,563.18. Ordered that the judgment is affirmed, with costs. The Supreme Court properly confirmed the arbitration award. In deciding not to consider the transcript of the witness Alan Bergman’s testimony where there was no transcript of Bergman’s testimony upon cross-examination, but, rather, to make a determination, in part, based on his own notes taken of the entire testimony, the arbitrator acted properly within his discretion. Despite the plaintiffs’ contention that this constituted partiality toward the defendant, we find that the arbitrator acted impartially. The plaintiffs have not shown by clear and convincing proof to the contrary (see, J.J.K. Constr. v Rosenberg, 141 AD2d 507, 508). Further, we find that the arbitrator, in conducting the hearing in a manner not constrained by the substantive or evidentiary rules that a court of law might otherwise be, reasonably decided to limit the cross-examination of the witness Anthony Bostinto, which is within the arbitrator’s authority (see, Matter of Board of Educ. [Hess], 49 NY2d 145, 152; see also, J.J.K. Constr. v Rosenberg, supra, at 508). We note that the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiffs’ cross motion which was to stay the entry of the judgment. We have considered the plaintiffs’ remaining contentions and find them to be without merit. Mangano, P. J., Thompson, Bracken and Fiber, JJ., concur.