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) ORDER 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?1 Should this Court impose costs and sanctions against Defendant and/or Defendant’s counsel for attempting to submit such evidence to the arbitrator? 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)2 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 proceeding3 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. 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 (see Central Sq. Teachers Assn. v. Board of Educ. of Central Sq. Cent. School Dist., 52 NY2d 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 AD2d 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 NYS2d 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 NY2d 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 NY2d 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 postarbitration 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.4 In seeking to use the subject video and recordings in arbitration, Defendant did not violate the August 14, 2019 court order. Second, contrary to Plaintiff’s arguments (NYSCEF Doc No. 65,
