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Bordonaro v. Lynch2/19/2004
are relating to the issues of suitability, negligence, and breach of contract. Arbitrator Kerner made the following statements:
"The panel has determined, secondly, with regard to the duty to obtain and indicate suitable securities, that there's been no violation by Mr. Telerico or by the company. We feel that there were standing trading strategies in place with respect to Mr. Bordonaro's accounts, and that Mr. Telerico assessed the suitability of the vehicles he recommended to Mr. Bordonaro in each and every case, and the evidence does not show a violation of the rules, regulations, or customs of the industry in this regard.
"Thirdly, we find no negligence of any sort that is actionable on the part of Mr. Telerico or Merrill Lynch with regard to its or his conduct as being inappropriate in this case.
"Fourthly, we find no breach of fiduciary duty by Mr. Telerico. "Fifthly, we find no breach of contract in relation to NASD rules."
.On the record before this court, it is evident that it was error to prevent plaintiff from presenting expert testimony on most of the issues the panel decided. Without Tulman's testimony, the trial court was without any evidence as to the standards, customs, and practices the panel used to determine that defendants had no liability. And the appellate court also has been deprived of this information. Tulman would have testified about the particular standards and industry practices defendants should have followed in handling plaintiff's accounts. Without that testimony, plaintiff was prevented from presenting evidence that was material and pertinent to his case. We conclude that the panel's exclusion of Tulman's testimony eviscerated plaintiff's case and thus amounts to a gross procedural impropriety. Accordingly, the trial court erred in denying plaintiff's motion to vacate the arbitration award. Plaintiff's sole assignment of error is sustained. Judgment accordingly.
Frank D. Celebrezze Jr., P.J., and Sean C. Gallagher, J., concur.
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