Opinion
Index No. 519186/2018
02-21-2023
Doreen Graci, Plaintiff, v. Darren Chen, Defendant.
Gruenberg Kelly Della, Ronkonkoma (Mike Della of counsel), for plaintiff. Law Office of James G. Bilello & Associates, Hicksville (Ivonne Estevez-Sarkinen of counsel), for defendant.
Unpublished Opinion
Gruenberg Kelly Della, Ronkonkoma (Mike Della of counsel), for plaintiff.
Law Office of James G. Bilello & Associates, Hicksville (Ivonne Estevez-Sarkinen of counsel), for defendant.
Aaron D. Maslow, J.
The following numbered papers were read on this motion:
Order to Show Cause-Signed (NYSCEF Doc No. 63)
Order to Show Cause-Conformed Copy (NYSCEF Doc No. 64)
Affirmation of Mike Della, Esq., in Support (NYSCEF Doc No. 65)
Exhibit 1 - 8/14/19 Preclusion Order (NYSCEF Doc No. 66)
Exhibit 2 - Arbitration Agreement (NYSCEF Doc No. 67)
Exhibit 3 - Cover Letter to Plaintiff's Arbitration Submission (NYSCEF Doc No. 68)
Exhibit 4 - Cover Letter to Defendant's Arbitration Submission (NYSCEF Doc No. 69)
Exhibit 5 - Arbitration Award (NYSCEF Doc No. 70)
Affidavit of Service (NYSCEF Doc No. 71)
Affidavit of Service (NYSCEF Doc No. 72)
Affirmation of Ivonne Estevez-Sarkinen, Esq., in Opposition (NYSCEF Doc No. 73)
SSAM Arbitration Stipulation (Agreement) (NYSCEF Doc No. 74)
SSAM Arbitration Stipulation (Agreement) (NYSCEF Doc No. 75)
Issues Presented
The parties having entered into an agreement to arbitrate Plaintiff's negligence claim against Defendant which was the subject of this court action, should this Court direct the arbitrator to preclude Defendant's video and audio evidence which had been precluded by court order from being produced at trial and on a motion in the action? Should this Court impose costs and sanctions against Defendant and/or Defendant's counsel for attempting to submit such evidence to the arbitrator?
Research by this Court has not yielded any decisional precedent specifically on this issue.
Background
This is an action to recover damages for personal injuries allegedly sustained by Plaintiff due to Defendant's negligence in a motor vehicle accident occurring on September 18, 2017. Following the exchange of discovery, Defendant's deposition took place on March 27, 2019. It was at that deposition that Defendant testified that he had a dash cam video of the accident as well as recordings of conversations with Plaintiff and the police made right afterwards. Plaintiff moved to preclude use of the video and recordings and, on Aug. 14, 2019, the Court (Hon. Lizette Colon, J.S.C.) granted Plaintiff's motion in an order, which provided:
The defendant is hereby prohibited from producing video & audio evidence, namely the dash cam video recorded by the defendant of the accident and the audio recordings of defendant's conversation with the plaintiff after the accident, and testimony referencing said video and audio evidence into evidence at trial and in support of or opposition to any motions made in this action in accordance with CPLR § 3126(2). (NYSCEF Doc No. 68 at 8-9)
On June 14, 2022, Plaintiff's counsel informed the Court:
Please be advised that this case is going to Arbitration.
At this time, we are requesting that this case be marked off the trial calendar. If the Arbitration is to fail, a letter requesting the case be restored to the trial calendar will be submitted. (NYSCEF Doc No. 55)
Although the letter is filed in NYSCEF in a document not included in the motion papers, this Court may take judicial notice of a filed document in the pending matter (see Allen v Strough, 301 A.D.2d 11 [2d Dept 2002]).
On August 23 and 24, 2022, the parties entered into an arbitration agreement, retaining SSAM Alternative Dispute Resolution. Notably, paragraph 1 of the agreement provided: "Rules: SSAM's Rules of Arbitration in existence at the time the matter is scheduled are in force and effect and are incorporated herein by reference." (NYSCEF Doc Nos. 74, 75)
The parties appeared before Thomas P. Gorton, Esq., the designated arbitrator, on September 27, 2022. In his award of that date, he described what transpired:
There is no decision in this case. The matter arises from a two-vehicle accident on the FDR. Both parties submitted extensive submissions on this case which I did review.
One of the submissions submitted by the plaintiff is an Order from the Court precluding the defendant from using or referring to a dashboard video during any "trial" or "motion" of the case.
One of the submissions submitted by the defendant was the dashboard video. I purposely have not viewed the video submitted by defendant because I knew its admission would be the subject of contention by both sides during the course of the arbitration.
Prior to the commencement of the arbitration, the issue of the video came up and was discussed. During that discussion, I made it known that I felt as an arbitrator in a private arbitration voluntarily entered into by the parties, that I was not bound by a Court Order that applied only to a trial or a motion, with this arbitration proceeding being neither.
I also understood, in fairness to the parties, that one or both might disagree with my position and may want to seek a court order testing that position, by way of an Article 78 proceeding[ ] or otherwise. With that in mind, plaintiff's attorney consulted with his client, and after considering his options, decided to seek an adjournment of the arbitration.
In keeping with the spirit of the discussions I had with two very professional attorneys, the arbitration of this matter is hereby adjourned to a date agreeable to all sides.
Finally, in the event it is determined that this arbitration go forward without the video, I would recuse myself from further participation so as to not give the appearance of being tainted by my knowledge that said video even exists.
Presumably the arbitrator meant a CPLR Article 75 proceeding.
The parties herein are now before this Court on Plaintiff's motion, which seeks the following relief:
(1) Ordering a new arbitration hearing to be held before an arbitrator other than Thomas P. Gorton, Esq.;
(2) Enforcing the preclusion of video and audio evidence pursuant to the August 14, 2019 Order and CPLR 3126;
(3) Awarding costs to Plaintiff caused to be incurred by Defendant for both (a) the failed September 27, 2022 arbitration, and (b) filing and services fees for the instant application; as well as sanctions against Defendant's counsel pursuant to 22 N.Y.C.R.R. §§ 130-1.1 and 130-2.1; and
(4) Such other relief as this Court deems proper.
(NYSCEF Doc No. 64)
Discussion
The admissibility of evidence and the determination of issues of fact are left to the arbitrator's discretion (s ee Central Sq. Teachers Assn. v Board of Educ. of Central Sq. Cent. School Dist., 52 N.Y.2d 918, 919 [1981] ["The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny."]; Matter of Bernstein v On-Line Software International, Inc., 232 A.D.2d 336, 338 [1st Dept 1996] ["It is well established, however, that arbitrators are not bound by the rules of evidence and may admit or deny exhibits on an equitable basis."]). "It is well settled that procedural questions that arise during arbitration, such as which witnesses to hear and which evidence to receive or exclude, are left to the sound discretion of the arbitrator and should not be second-guessed by the courts (National Football League Management Council v National Football League Players Assn., 820 F.3d 527, 545 [2d Cir 2016])."
Once parties have committed themselves to the arbitration process, judicial interference is quite circumscribed. In Matter of Schwartz, 127 Misc. 452 [Sup Ct, New York Co 1925], the following observations were made by the court:
Furthermore, arbitrators need pay no attention to rules of evidence. They are not confined to what a court of law would conceive to be 'material.'...
Courts may not indirectly interject their rules of procedure or rules of evidence into an arbitration excepting in so far as clearly warranted by statute or necessity. Otherwise fundamental, motivating concepts as to informality and freedom from requirements of procedure and of proof would be nullified. The prospect of a speedy determination unhampered by legal technicalities is of prime importance to those contemplating arbitration....
I believe that the court should not interject itself or its practice into arbitrations unless required to do so by statutory provision or necessity....
It is quite a different thing to say that the matters to be submitted to arbitration are to be partially defined, limited and, to all intents and purposes, tried in advance by and under the direction and guidance of a court of law.
"So long as the parties voluntarily submit to the unconventional procedure of the arbitration tribunal, there is no warrant for judicial inquiry into the nature of the evidence which the arbitrators may deem essential (In re Landegger, 54 N.Y.S.2d 76 [Sup Ct, New York Co], mod 269 AD 736 [1st Dept 1945])."
In the instant case, Plaintiff has sought court involvement in the arbitration process prior to its conclusion. It is worth bearing in mind the following:
[T]he announced policy of this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties. "One way to encourage the use of the arbitration forum" we recently noted "would be to prevent parties to such agreements from using the courts as a vehicle to protract litigation. This conduct has the effect of frustrating both the initial intent of the parties as well as legislative policy" (Matter of Weinrott [Carp], 32 N.Y.2d 190, 199). To this end the Legislature has assigned the courts a minimal role in supervising arbitration practice and procedures. (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 N.Y.2d 91, 95 [1975])
It is evident to this Court that the parties mutually agreed to submit their dispute to arbitration. The arbitration agreement they signed did not refer to the dash cam video and the audio recordings. Therefore, the admission and consideration of evidence lay within the purview of the arbitrator, subject to the respective arbitration organization's rules concerning evidence. Rule 13 of SSAM's Rules of Arbitration states: "A hearing may be conducted by the arbitrator in any manner, which permits a fair presentation of the case, by the parties. While the Arbitrator will generally be guided by the Federal Rules of Evidence, they shall have broad discretion to employ 'relaxed' rules of evidence as they in their discretion deem appropriate to the circumstances." (https://ssamadr.com/arbitration-rules-personal-injury-matters/ [last accessed Feb. 11, 2023] [emphasis added]). There is nothing in these Rules which discusses the treatment of evidence which was precluded had the parties remained in court. In light of this, it was the arbitrator's responsibility to determine whether or not the dash cam video and the audio recordings would be admitted into evidence and considered.
Basically, what has transpired here is that the arbitrator relinquished his responsibility to rule on the admissibility of the evidence. While he was aware that consideration of the video and audio recordings "would be the subject of contention," oftentimes such evidentiary disputes do arise in arbitration. The arbitrator should not have avoided making a determination. Instead, he "punted the ball" back to this Court and this has delayed resolution of the subject auto accident dispute. This contravened how arbitration is intended to work - to serve as a forum for expeditiously resolving disputes in a more informal process. The arbitrator should have made a determination - admitted the proffered evidence or precluded it - and, if either party wished to pursue the matter in court, review of the arbitrator's decision could have taken place in a post-arbitration Article 75 proceeding to vacate the arbitration award.
The within motion to preclude the arbitrator from viewing the dash cam video and the audio recordings is an improper attempt to, in effect, make an in limine motion to determine what evidence an arbitrator may consider. The parties must return to arbitration to be conducted by SSAM Alternative Dispute Resolution, as per the agreement they signed. Since Defendant "consents to go forward with another arbitrator from the same vendor" (NYSCEF Doc No. 73, ¶ 3), it is appropriate for SSAM Alternative Dispute Resolution to designate a different arbitrator and continue with the process.
As noted above, Plaintiff also seeks reimbursement for costs incurred for the failed arbitration and the making of the instant motion, as well as the imposition of sanctions. The Court finds this application lacking in merit for the following reasons.
First, the August 14, 2019 court order only prohibited use of the video and audio evidence "at trial and in support of or opposition to any motions made in this action" (NYSCEF Doc No. 68 at 9). There was no reference to arbitration. In determining whether an arbitration is part of a related judicial action, the Court finds Article 75 of the CPLR, detailing the rules and procedures relating to arbitration, instructive. Although the word "action" is used at various points throughout Article 75, it is never used in reference to an arbitration. Instead, the word "action" is used to differentiate a judicial proceeding from an arbitration. In seeking to use the subject video and recordings in arbitration, Defendant did not violate the August 14, 2019 court order.
"If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration." (CPLR 7503 [a]) Further support can be found in CPLR 7502 (c), where judicial remedies detailed in articles 62 (attachment) and 63 (injunction) are made available in arbitration. The provision states that "arbitration shall be deemed an action for this purpose." This is an exception proving the rule that arbitrations are not themselves considered "actions."
Second, contrary to Plaintiff's arguments (NYSCEF Doc No. 65, ¶¶ 4, 21), the preclusion order did not constitute law of the case. The decisions cited by Plaintiff concerned matters within the identical court action, not with court determinations having an effect on arbitration. "The law of the case doctrine is a rule of practice that applies to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case" (Wieder v Home Depot U.S.A., Inc., 208 A.D.3d 535, 538 [2d Dept 2022]). The arbitration before SSAM Alternative Dispute Resolution constituted a separate attempt to resolve the parties' dispute - not the same court action.
"The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 N.Y.2d 162 [1975]). The arbitrator here was not a judge of co-ordinate jurisdiction, and SSAM Alternative Dispute Resolution was not a court of co-ordinate jurisdiction.
Finally, the law contemplates the admission of evidence that might be precluded in a court of law. Inasmuch as determinations concerning evidence are left to the sound discretion of the assigned arbitrator, Defendant's counsel did not engage in any unethical, shameless, or frivolous conduct, or "disrespect," as contended by Plaintiff (NYSCEF Doc No. 65, ¶¶ 25, 31-33), in attempting to have the arbitrator review the recordings.
"[T]he admission of evidence that might well be precluded in a court of law is not sufficient cause for vitiating an award unless the mistake or error of law is so gross or palpable as to amount to fraud or misconduct [citations omitted]" (Matter of New York State Inspection, Sec. and Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Department of Correctional Services of State of New York, 227 A.D.2d 856, 857 [3d Dept 1996]). The action of an arbitrator in receiving evidence which would not be admissible at a court trial does not constitute corruption, fraud, or undue means or misbehavior (see Matter of Brill v. Muller Bros., 13 N.Y.2d 776 [1963]).
This discussion of whether Defendant's counsel engaged in any impropriety when attempting to submit the video and audio recordings to Arbitrator Gorton is not to be construed as a determination of whether the new arbitrator shall admit them into evidence. The new arbitrator must make that determination on their own, taking into consideration any factors deemed appropriate. This discussion was merely for the purpose of determining whether to grant or deny Plaintiff's request for costs and sanctions.
Determination
Plaintiff's motion is denied except to the extent that the arbitration shall resume before a different arbitrator.
Accordingly, it is hereby ORDERED as follows:
(1) The arbitration begun under the auspices of SSAM Alternative Dispute Resolution shall resume, with said organization designating a different arbitrator. (2) Said renewed arbitration shall take place within 60 days after entry of this order. (3) Said arbitrator shall determine whether or not to admit and consider the subject dash cam video and audio recordings and, if they are admitted, said arbitrator shall determine their probative value. (4) No costs or sanctions with regard to the within dispute concerning the subject dash cam video and audio recordings are to be imposed on Defendant and Defendant's counsel. (5) Any costs of the arbitration itself are to be determined by the arbitrator in accordance with the rules of the designated arbitration organization and the agreement entered into by the parties.