Metropolitan Cas. Ins. Co. v Hartford Cas. Ins. Co.

[*1] Metropolitan Cas. Ins. Co. v Hartford Cas. Ins. Co. 2010 NY Slip Op 51193(U) [28 Misc 3d 128(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-1606 Q C.

Metropolitan Casualty Insurance Company a/s/o Charles Bukowski, Appellant,

against

Hartford Casualty Insurance Company and State Farm Mutual Automobile Insurance Company, Respondents, -and- Encompass Insurance Company, Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered October 23, 2008. The order, insofar as appealed from, denied petitioner's motion to confirm or, in the alternative, to vacate an arbitration award.

ORDERED that the appeal is dismissed.

In May 2007, an arbitration decision was issued which found that petitioner had proved "100%" damages of $1,125.55 plus a deductible of $250, for a total of $1,375.55, as against respondent State Farm Mutual Automobile Insurance Company (State Farm). However, the award which issued pursuant to the decision awarded petitioner $1,375.55 against respondent Hartford Casualty Insurance Company (Hartford), not State Farm.

Petitioner thereafter brought the instant proceeding to confirm the arbitration award as against Hartford, pursuant to CPLR 7510 or, in the alternative, to vacate the award, pursuant to CPLR 7511, based on the error. By order entered May 7, 2008, the Civil Court dismissed the petition on the ground of improper service (Pineda-Kirwan, J.). Subsequently, petitioner re-served the petition, and Hartford cross-petitioned to confirm the award as against State Farm, pursuant to CPLR 7510 or, in the alternative, to vacate the award, pursuant to CPLR 7511. By order entered October 23, 2008, the Civil Court (Mayersohn, J.) denied both the petition and cross petition on the ground of untimeliness. The October 23, 2008 order was later recalled and [*2]vacated by order of the Civil Court (Mayersohn, J.) entered December 16, 2008, based on the May 7, 2008 order.

Petitioner appeals from so much of the order entered October 23, 2008 as denied its petition. As noted, however, that order was recalled and vacated by the order entered December 16, 2008, which specifically stated that it was intended to replace the court's October 23, 2008 order. No appeal can be taken from an order which has been recalled and vacated (see Berry v Jewish Bd. of Family and Children's Servs., 173 AD2d 668 [1991]). Accordingly, the appeal is dismissed.

To the extent that petitioner seeks to raise arguments pertaining to the propriety of the order of the Civil Court entered May 7, 2008, such arguments are not properly before us, since no appeal was taken from said order. Accordingly, any arguments with respect thereto have not been considered on this appeal (see CPLR 5515 [1]; Metropolitan Prop. & Cas. Ins. Co. v Sigue, 10 AD3d 680 [2004]; Cardinal Holdings v Chandre Corp., 302 AD2d 550 [2003]).

Pesce and Rios, JJ., concur.

Golia, J.P., concurs in part and dissents in part in a separate memorandum.

Golia, J.P., concurs in part and dissents in part and votes to dismiss the appeal with leave to petitioner to file a notice of appeal from the December 16, 2008 order nunc pro tunc as of the date of the original notice of appeal, in the following memorandum:

The underlying facts, as set forth in the majority's decision, establish that there is a significant discrepancy between the arbitrator's decision and his award which, in my opinion, should be addressed. The same arbitrator who rendered a decision finding 100% liability against respondent State Farm subsequently issued an award pursuant to that decision but finding against a different respondent, to wit, Hartford and not State Farm. All of this occurred without any explanation as to the obvious discrepancy.

Petitioner Metropolitan Casualty, which was simply seeking payment, irrespective of which party was responsible, commenced a proceeding in Civil Court to either confirm the award as issued (pursuant to CPLR 7510) and have judgment entered against Hartford or to correct the award (pursuant to CPLR 7511) and have judgment entered against State Farm. The Civil Court did neither.

Judge Pineda-Kirwan dismissed the petition on the ground of improper service. This dismissal, however, was without prejudice to petitioner filing a new petition. Pursuant to the court's order, petitioner re-served the petition, which was joined by a cross petition from respondent Hartford. That matter came before Judge Mayersohn who, by order dated October 23, 2008, denied both the petition and the cross petition on the ground of untimeliness. Subsequently, Judge Mayersohn sua sponte recalled and vacated his order of October 23, 2008 and replaced that order with an order, dated December 16, 2008, which denied the petition as "moot."

Petitioner filed a timely notice of appeal on October 31, 2008 of Judge Mayersohn's October 23, 2008 order. It was only after the present appeal was filed that Judge Mayersohn vacated his order of October 23, 2008 and approximately two months thereafter issued the replacement order dated December 16, 2008. This sua sponte order denied the petition on other grounds: Judge Mayersohn opined that inasmuch as the petition sought the identical relief that was sought by the prior petition held before Judge Pineda-Kirwan, it was "moot and, thus [*3]denied."

Under the singularly unique and unusual facts and circumstances presented by this case, I concur with the majority in holding that the appeal must be dismissed, but I would grant leave to petitioner to file a notice of appeal from the December 16, 2008 order nunc pro tunc as of the date of the original notice of appeal, with time to perfect.
Decision Date: July 07, 2010