Ostberg v. Dragan Litric 2011 WL 166741 (1st Dept, Jab 20, 2011) This case has some strange facts, but it looks like one in which a tactical move in a contract that called for arbitration backfired on the contractor. The owner submitted a claim to the architect as is the usual dispute resolution procedure in an AIA contract. However, the contractor opted not to participate. As a result the architect found in favor of the owner. The owner then filed suit to confirm the architect’s decision. The defendant contractor defended on the grounds that 1) the architect’s decision was invalid because the owner submitted his claim to the architect after the contract had been terminated, and 2) the owner and architect committed procedural errors in the dispute resolution proceeding. The contractor argued, based on the Matter of County of Rockland and Matter of Liebhafsky cases, that as a matter of law the architect was automatically divested of authority to render a decision on a claim submitted after the construction is substantially completed or the contract had been terminated. The court held however that these cases did not so hold, and that they were decided based upon the language of their particular contracts. In this case the court held that the contract did not place any time limits on the architect’s authority to render decisions. Therefore the architect’s decision was not invalidly rendered. The court also said: “If defendant disputed the authority of the architect to render a decison on plaintiff”s claim, it was incumbent on him to assert his challenge at the time the claim was submitted, and not remain silent and seek to challenge the architect’s authority after an adverse decison had been rendered against him.” As to the argument of precedural errors, the court held that alleged errors in following the dispute resolution provision in the contract were issues to be decided in arbitration, and that those issues were beyond the scope of the court’s authority to address in litigation. And the clincher was: “Since defendants chose not to participate in the dispute resolution procedures at all, this is not the proper forum for him to complain that the procedures were not followed.” This case illustrates the danger in the tactic of relying upon a technicality to set aside what amounts to a default judgment. Here the contractor played that gamble and got burned.