Opinion
February 6, 1989
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The facts of this case are summarized in the companion decision and order concerning the petitioners' appeal from the judgment of the same court confirming the arbitrators' award (see, Hendler Murray v Lambert, 147 A.D.2d 444 [decided herewith]).
The petitioners contend that their motion for discovery as well as to recuse the court-appointed arbitrator should have been granted. We disagree.
As this court ruled in a prior appeal brought by the petitioners in the instant case: "Generally, courts may not order discovery in aid of arbitration unless the movant has demonstrated '"extraordinary circumstances"' (De Sapio v Kohlmeyer, 35 N.Y.2d 402, 406, quoting from Matter of Katz [Burkin], 3 A.D.2d 238, 239)" (Hendler Murray v Lambert, 127 A.D.2d 820). It has been stated that "[t]he test is necessity rather than convenience" (Matter of State Farm Mut. Auto. Ins. Co. v Wernick, 90 A.D.2d 519). The petitioners in the instant case have not demonstrated the requisite "extraordinary circumstances" to obtain the respondent firm's books and records, which in any event would not have reflected improper acts of solicitation of the petitioners' clients and employees, as alleged in their counterclaims. It is worthy of note that the petitioners produced no evidence whatsoever that the respondent Lambert had solicited their clients while still a partner at Hendler Murray; nor do they even allege that after he left the partnership he resorted to fraud or threats to acquire their business or the petitioners' employees. Since in arbitration proceedings, court-ordered disclosure "is not justified except where it is absolutely necessary for the protection of the rights of a party" (International Components Corp. v Klaiber, 54 A.D.2d 550, 551), the application was properly denied in the case at bar, where the petitioners have shown no necessity for such disclosure, nor even the slightest evidence of improper behavior by Lambert.
The petitioners' motion to recuse the court-appointed arbitrator was also justly denied. The CPLR provides for removal of an arbitrator in advance of a hearing only "for reasons of health or unavailability or other circumstances tantamount to the occurrence of a vacancy" (Matter of Siegel [Lewis], 40 N.Y.2d 687, 689; CPLR 7504). Otherwise, the party must move to vacate the award within 90 days of its delivery, pursuant to CPLR 7511 (a), which was not done in the instant case. In any event, the record reflects that the court-appointed arbitrator behaved with impeccable fairness and impartiality throughout the proceedings. Mangano, J.P., Brown, Kunzeman and Kooper, JJ., concur.