¶1dissents and votes to affirm, with the following memorandum: I respectfully dissent, and would affirm the order of the Supreme Court, Nassau County.
¶2It is undisputed, as the Supreme Court found, that the respondent Gregory Rizzo Traína was allowed to consult with his attorney before answering virtually every question posed to him on cross-examination. This was in clear violation of the petitioners’ right to cross-examine the respondent with respect to his handling of their investments—the very crux of the petitioners’ case (see, CPLR 7506 [c]; Matter of Goldfinger v Lisker, 68 NY2d 225, 231).
¶3In addition, despite the requirement of section 37 of the National Association of Security Dealers Rules (hereinafter NASD Rules) that all arbitration hearings be taped or steno-graphically recorded, a court reporter submitted an affidavit attesting to her inability to transcribe the tapes of the instant proceedings because they were inaudible. As the petitioners cannot be held responsible for producing the "verbatim record” required by NASD Rules section 37, they should not be penalized when, despite the presence at the hearing of an apparently operative tape recorder, no record of the proceedings was in fact created.
¶4On two grounds, therefore, the instant arbitration proceeding was correctly set aside as unfair to the petitioners because of a failure to follow proper procedures (CPLR 7511 [b] [1] [iv]). As the Court observed in Matter of Goldfinger v Lisker (supra),it is "[precisely because arbitration awards are subject to such judicial deference [that] it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded” (Matter of Goldfinger v Lisker, supra, at 230).
¶5I also agree with the petitioners that, in the absence of a hearing record, this Court has no basis upon which to arrive at an informed judgment as to the issues being disputed on this appeal.