American Tr. Ins. Co. v Geico Gen. Ins. Co.

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American Tr. Ins. Co. v Geico Gen. Ins. Co. 2018 NY Slip Op 33323(U) December 18, 2018 Supreme Court, New York County Docket Number: 654262/2018 Judge: William Franc Perry Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 654262/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/19/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY --; PRESENT: PART HON. W. FRANC PERRY IAS MOTION 23EFM Justice -------------------------------------------------------------------------------X AMERICAN TRANSIT INSURANCE COMPANY INDEX NO. MOTION DATE 654262/2018 10/16/2018 Petitioner. MOTION SEQ. NO." 001 -vGEICO GENERAL INSURANCE COMPANY, DECISION, ORDER AND JUDGMENT Respondent: -----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9 were read on this motion to/for VACATE -AWARD, Petitioner American Transit Insurance Company ("A TIC"), seeks an order vacating the final arbitration award rendered by a panel of three arbitrators on May 31, 2018 (the "Award"), in favor ofrespondent Geico General Insurance Company ("GEICO") and against Petitioner in the amount of$16,542.32. The Petition is submitted without opposition. On or about June 09, 2016, non-party Alaric Wilder ("Wilder) was injured in an automobile accident in Brooklyn, NY. According to Wilder's Application for Motor Vehicle Benefits ("NF-2"), a vehicle driven by Wilder was rear ended while traveling on the Brooklyn Queens Expy. There is no Police Report or MV-104 form for the accident. As a result of the accident, GEICO, Wilder's insurer, paid $16,542.32 in medical expenses on his behalf. On February 14, 2018, GEICO filed for compulsory arbitration with Petitioner seeking to subrogate the payments made on behalf ofGEICO's driver, Wilder. GEICO sought arbitration against ATIC as the insured for a 2011 Toyota bearing plate number T616304C. In their responses to GEICO's demand for arbitration, ATIC admitted coverage, but denied any liability for the subject accident (see NYSCEF No. 3, p.3 ["Admit Coverage: Yes"]). 654262/2018 AMERICAN TRANSIT INSURANCE vs. GEICO GENERAL INSURANCE Motion No. 001 1 of 4 Page 1of4 [* 2] INDEX NO. 654262/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/19/2018 After a hearing, on May 31, 2018, a panel of arbitrators issued an Award in favor of GEICO and against ATIC in the amount of$16,542.32. In the Award, the panel rejected ATIC's argument that the absence of a Police Report or MV-104 form precluding holding A TIC liable for the amounts paid by GEICO. The panel found that, in light of ATIC's failure to produce any evidence that either (I) established that ATIC's insured was not involved in the accident or (2) that Wilder was not struck in the rear by ATIC's insured, Wilder's submissions were sufficient to prove 100% liability against A TIC. Now, ATIC moves, pursuant to CPLR 7511, for an order vacating and setting aside the Award on the grounds that the panel exceeded their authority and the decision was arbitrary, capricious and imperfectly executed. It is well settled that a party seeking to vacate an arbitration award carries a "heavy burden" (Scollar v. Cece, ,812 NYS2d 521, 522 [1st Dept 2006], citing Matter ofNew York State Correctional Officers & Police Benevolent Assn v. State ofNew York, 94 NY2d 321, 326 [1999]). An arbitration award must be upheld when the arbitrator "offers even a barely colorable justification for the outcome reached" (Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert. dismissed, 548 US 940, 127 S.Ct. 34, [2006] [citations omitted]). As ' stated by the Court of Appeals, "we have stated time and again that an arbitrator's award should not be vacated for errors oflaw and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice (Id., citing, Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 [1979]; Matter ofNew York State Correctional Officers & Police Benevolent Assn., supra, ["A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one"]). 654262/2018 AMERICAN TRANSIT INSURANCE vs. GEICO GENERAL INSURANCE Motion No. 001 2 of 4 Page 2 of 4 [* 3] INDEX NO. 654262/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/19/2018 "The scope of judicial review of an arbitration proceeding is extremely limited" (Elul Diamonds Co. Ltd v. Z Kor Diamonds, Inc., 50 AD3d 293 (!st Dept 2008]). When determining whether to vacate an arbitration award, courts are "obligated to give deference to the decision of the arbitrator" and are constrained by the grounds set forth in CPLR §7511 (b) (!). (Id.). Compulsory arbitration awards, such as the award here, are subject to a broader scope ofreview than awards resulting from consensual arbitration and the standard ofreview is whether the award is supported by the evidence or other basis in reason as appears in the record (Rose ·V. Travelers Ins. Co., 96 AD2d 551 [2d Dept 1983]; Petrofsky v. Allstate Ins. Co., 54 NY2d 207, 210 (1981 ]). If the award is to be upheld, it cannot be arbitrary or capricious; "arbitrary action is without sound basis in reason and is generally taken without regard to facts" (Pell v. Board of Educ of Union Free School Dist. No. 1 o.fTowns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974]). Here, ATIC has not met its burden to demonstrate that the Award was arbitrary and capricious and without sound basis in reason. At the arbitration, GEICO presented a plate check for a 2011 Toyota, bearing plate T616304C insured by ATIC. The plate check further stated that the vehicle was being used as a Taxi. GEICO also presented the NF-2, which stated that the accident occurred when Walker was rear ended by another vehicle. In opposition, A TIC failed to produce any evidence that their vehicle was not involved in the subject accident, or that their insured did not rear end Wilder. Given the standard ofreview, and the review and analysis undertaken by three separate arbitrators in reaching the subject Award, this court cannot say that the Award was issued without sound basis in reason or without regard to facts. Accordingly, it is hereby 654262/2018 AMERICAN TRANSIT INSURANCE vs. GEICO GENERAL INSURANCE Motion No. 001 3 of 4 Page 3 of4 [* 4] INDEX NO. 654262/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/19/2018 ORDERED and ADJUDGED that American Transit Insurance Company's petition to vacate the Award is denied and the petition is dismissed; and it is further ORDERED and ADJUDGED that pursuant to CPLR 7511 the award is confirmed; and it is further ADJUDGED that Respondent GEICO GENERAL INSURANCE COMPANY, having an recover from Petitioner AMERICAN TRANSIT INSURANCE COMPANY, the amount of $16,542.32, plus interest at the statutory rate of 2% per month from June 31, 2018, pursuant to 11 NYCRR 65-3.9, as computed by the Clerk in the amount of$_ _ _ _ _ _ _ __ together with costs and disbursements in the amount of$~------- as taxed by the Clerk, for the total amount of$_______ and that Respondent have execution therfor; and it is further ORDERED that the clerk enter judgment accordingly. Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court. 12/18/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: W. FRANC PERRY, J.S.C. ~ CASE DISPOSED 1 GRANTED 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NON·FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 654262/2018 AMERICAN TRANSIT INSURANCE vs. GEICO GENERAL INSURANCE Motion No. 001 4 of 4 D D OTHER REFERENCE Page 4 of 4

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