Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated December 21, 2009. The order denied plaintiffs' motion to strike defendant's demand for a trial de novo.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. By order dated April 7, 2009, the District Court granted plaintiffs' motion to the extent of finding that plaintiffs' moving papers established a prima facie case for no-fault benefits. Thereafter, the parties participated in mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28) and, after the arbitration hearing, the arbitrator found in favor of plaintiffs. Defendant served and filed a demand for a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12), and plaintiffs moved to strike defendant's demand. In support of plaintiffs' motion, plaintiffs' attorney asserted that, while defendant had appeared at the arbitration by its attorney, defendant's attorney's participation had been minimal, and, thus, defendant should have been deemed to be in default. As a result, plaintiffs contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). Defendant submitted opposition papers, and the District Court denied plaintiffs' motion. The instant appeal ensued.

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 (see e.g. Tripp v Reitman Blacktop, 188 Misc 2d 317 [App Term, 9th & 10th Jud Dists 2001]; San-Dar Assoc. v Adams, 167 Misc 2d 727 [App Term, 1st Dept 1996]). Accordingly, the District Court properly denied plaintiffs' motion to strike defendant's demand for a trial de novo.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: January 10, 2011