State Farm Fire & Cas. Co. v Discover Prop. & Cas. Ins. Co.

[*1] State Farm Fire & Cas. Co. v Discover Prop. & Cas. Ins. Co. 2010 NY Slip Op 50616(U) [27 Misc 3d 130(A)] Decided on January 22, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 20, 2010; it will not be published in the printed Official Reports.

Decided on January 22, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-269 Q C.

State Farm Fire and Casualty Company a/s/o PETER OSEI and COMFORT OSEI, Appellant,

against

Discover Property & Casualty Insurance Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered January 12, 2009. The judgment dismissed the petition seeking to vacate two arbitration awards and confirmed the awards.

ORDERED that the judgment is affirmed without costs.

Petitioner commenced this proceeding seeking to vacate two arbitration awards, issued by Arbitration Forums, Inc., in which the arbitrator had found for respondent on the ground that the statute of limitations barred petitioner's claims. The Civil Court denied the petition, and a judgment was entered dismissing the proceeding and confirming the awards. The instant appeal by petitioner ensued.

For an award in a compulsory arbitration proceeding to be set aside, the award must lack evidentiary support or be arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; see also Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762 [2005]). In the case at bar, we find that the arbitrator's awards had evidentiary support and were not arbitrary and capricious.

The Rules and Regulations of Arbitration Forums, Inc. in effect at the time of the filing of the instant arbitration claims provided in pertinent part that "[w]hen a matter which should have been referred to arbitration under the Agreement is placed in litigation . . . [t]he Applicant will have 60 days to file arbitration from the date of suit dismissal . . . [i]f the case is filed after the 60 day time frame, the expiration of the statute of limitations, if raised, is a valid affirmative defense."

The statute of limitations for petitioner's cause of action was three years, and the [*2]limitations period started to run on December 20, 2002, the date on which petitioner made its first payment to the claimants (see CPLR 214 [2]; Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d 214). While petitioner timely commenced a civil action against respondent on December 10, 2003, that action was dismissed on May 14, 2004, when both parties signed a stipulation of discontinuance. Since petitioner did not file its arbitration claims until April 18, 2008, said claims were time-barred. Accordingly, the petition to vacate the arbitration awards was properly denied, and the judgment is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 22, 2010