State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co.

[*1] State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co. 2010 NY Slip Op 51543(U) [28 Misc 3d 139(A)] Decided on April 16, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1936 Q C.

State Farm Mutual Automobile Insurance Company a/s/o POONRAJ PERSAUD, Appellant-Respondent, - -

against

Hereford Insurance Company, Respondent-Appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 15, 2008. The order, insofar as appealed from by petitioner, denied the petition to confirm a handwritten arbitration award dated June 19, 2007 and dismissed the proceeding. The order, insofar as appealed from by respondent, provided that the dismissal of the proceeding was without prejudice.

ORDERED that the order is affirmed without costs.

By notice of petition and petition dated May 14, 2008, State Farm Mutual Automobile Insurance Company (State Farm) commenced this proceeding to confirm a handwritten arbitration award dated June 19, 2007. Hereford Insurance Company (Hereford) opposed such relief, arguing, inter alia, that State Farm was, in effect, seeking either to vacate a final typewritten arbitration award dated July 7, 2007, thereby reinstating the handwritten award dated June 19, 2007, or to modify the July 7, 2007 award by conforming it to the June 19, 2007 award, and, as such, the proceeding was untimely as exceeding the 90-day time period within which an award may be vacated or modified (see CPLR 7511 [a]). The Civil Court denied the petition and dismissed the proceeding without prejudice to the commencement of a new proceeding, finding that the handwritten award was not in proper form because of a problem with the arbitrator's affirmation (see CPLR 7509). On appeal, State Farm contends that the petition to confirm the handwritten award should have been granted, and Hereford contends, inter alia, that the proceeding should have been dismissed with prejudice as it was not timely commenced.

CPLR 7510 permits a party to confirm an award; however, an award by definition must be in writing, signed and affirmed (CPLR 7507). For a document to be properly affirmed, there must be compliance with either CPLR 2309 or CPLR 2106. Here, the document submitted with the petition does not comply with the requisites of either statute. The handwritten award signed by the arbitrator, dated June 19, 2007, simply states:
"This decision is according to my understanding of the current local law and the facts presented. I may not render a decision on a case where I or my company is directly or indirectly interested, or where there is even an appearance of bias. I affirm that I have read [*2]and understand the following."
This is not in an authorized form; the mere statement that a person affirms a document is insufficient (Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799 [1981]). State Farm's assertion that arbitrators have been using this vague language for years is irrelevant. Consequently, the Civil Court acted within its discretion in allowing petitioner a further opportunity to submit an award in proper form for confirmation. Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 16, 2010