MEDIVIX, INC. v. SHNAYER

160 A.D.2d 911 (1990)

Medivix, Inc., et al., Appellants,
v.
Sheldon W. Shnayer, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.
April 23, 1990
Mangano, P. J., Thompson, Bracken and Eiber, JJ., concur.

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 A.D.2d 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 N.Y.2d 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.


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