Neiman v. Springer (71 A.D.2d 854, 1979)

—In a proceeding to confirm an arbitration award, the appeal is from a judgment of the Supreme Court, Kings County, dated January 22, 1979, which granted petitioners’ application and denied appellants’ cross motion to vacate the award. Proceeding remitted to Special Term to hear and report, with findings of fact, on the issue of whether there was misconduct on the part of the arbitrators and the appeal is held in abeyance in the interim. The refusal to hear pertinent and material evidence is misconduct justifying vacatur of the arbitration award (see CPLR 7511, subd [b], par 1, cl [i]; Matter of Professional Staff Congress/City Univ. of N. Y. v Board of Higher Educ. of City of N. Y., 39 NY2d 319, 323). In the instant case the arbitrators allegedly refused to hear evidence as a result of their finding that the parties had settled the issues to which the proffered evidence pertained. The issue of misconduct therefore turns on whether the arbitrators arbitrarily found that a settlement had been reached. (See Gervant v New England Fire Ins. Co., 306 NY 393, 398-400.) However, the record is insufficient to make a determination in that respect. Accordingly, a hearing is required (cf. Isais v Fischoff, 37 AD2d 702). Hopkins, J. P., Titone, Margett and Mangano, JJ., concur.