Appeal from a decision of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), dated October 17, 2006, deemed from a judgment entered on May 7, 2007 (see CPLR 5520 [c]). The judgment denied a petition to vacate an arbitrator's award.

Judgment affirmed without costs.

Petitioners were involved in a motor vehicle accident with an uninsured vehicle owned and operated by Anthony Manuele. They commenced a personal injury action against Mr. Manuele and, upon his default, an inquest was conducted and default judgments were entered in their favor against Mr. Manuele. Thereafter, petitioners served upon respondent a demand for arbitration of their claims for uninsured motorist (UM) or supplementary uninsured/underinsured motorist (SUM) benefits (petitioners were uncertain of which coverage they had). An arbitration hearing was held, and petitioners argued that the arbitrator was bound by the amount of the default judgments rendered in the personal injury action, and was obligated to render an award in the same amount of the judgments therein. Respondent argued that the arbitrator was not so bound, and offered a copy of the insurance policy which stated that any judgment for damages arising out of a lawsuit brought without its written consent was not binding upon the insurer. It was conceded that respondent had not been aware of the default judgments rendered in the personal injury action until the date of the arbitration hearing. The arbitrator found that respondent was not bound by the default judgments, and rendered an award in favor of [*2]respondent, dismissing petitioners' claims based upon their failure to demonstrate that they sustained a serious injury within the meaning of Insurance Law § 5102 (d).

In a petition to vacate the award, petitioners argued that the award was irrational and that the arbitrator "exceeded his power" (CPLR 7511 [b] [1] [iii]). Although petitioners were unable to produce the UM or SUM endorsements under which they
sought coverage, they claimed that their policy did not contain the language contained in the policy produced by respondent, which stated that respondent was not bound by a judgment for damages arising out of a lawsuit brought without its consent. Petitioners contended that it was irrational for the arbitrator to include such language as a provision in their policy. Moreover, even if such language was included in the applicable endorsement, the arbitrator exceeded his authority by determining an issue involving policy coverage rather than limiting himself solely to the issues of liability and damages. In opposition, respondent argued that there were no grounds for vacatur of the award, since said provision was included in the policy. The arbitrator's award was neither irrational, nor did the arbitrator exceed his authority in determining petitioners' entitlement to benefits. The court below denied the petition, and this appeal by petitioners ensued.

We agree with respondent that there was no basis for the court to vacate the arbitrator's award. The arbitrator did not exceed his authority (see CPLR 7511 [b] [1] [iii]) in determining whether petitioners were entitled to benefits under their policy with respondent (see Matter of GEICO Gen. Ins. Co. v Sherman, 307 AD2d 967 [2003]). Moreover, petitioners failed to meet their burden of showing that the arbitrator's award was irrational (see American Tr. Ins. Co. v Ebrahim, 236 AD2d 274 [1997]), or that it had no evidentiary support or was arbitrary and capricious (see Matter of Motor Veh.
Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 632 [2008]).

Accordingly, the court below did not err in denying the petition.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: July 10, 2008