Matter of American Tr. Ins. Co. v Nationwide Mut. Ins. Co. (2008 NY Slip Op 50295(U))

Matter of American Tr. Ins. Co. v Nationwide Mut. Ins. Co.

2008 NY Slip Op 50295(U) [18 Misc 3d 137(A)]

Decided on February 8, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through March 4, 2008; it will not be published in the printed Official Reports.

In the Matter of the Application of American Transit Insurance Company As Subrogee of Saratoga Mgmt C. Taxi, Respondent,

against

Nationwide Mutual Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered October 28, 2005. The judgment confirmed three arbitration awards and awarded petitioner the principal sum of $10,300.80.

Petitioner commenced compulsory arbitration proceedings against respondent, pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.11 (see Insurance Law § 5105 [b]), seeking reimbursement in the amount of $10,300.80 for no-fault benefits paid to three claimants. The arbitrator issued three awards in favor of petitioner. Respondent did not seek to vacate or modify the awards, but submitted opposition to the petition to confirm said awards. The court below granted the petition, ruling that, inter alia, respondent failed to seek to vacate the arbitration awards within the statutory period pursuant to CPLR 7511. A judgment was entered and the instant appeal ensued.

As a preliminary matter, we note that respondent was entitled to make its arguments for vacating the arbitration awards in opposition to a petition to confirm the awards, even though the statutory 90-day period in which to seek vacatur of the arbitration awards had expired (see Matter of Brentnall v Nationwide Mut. Ins. Co., 194 AD2d 537 [1993]; State Farm Mut. Ins. Co. v Fireman's Fund Ins. Co., 121 AD2d 529 [1986]).

Upon a review of the record, we find that the instant awards in the compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v [*2]Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]). In the awards, the arbitrator indicated that he had considered, inter alia, respondent's affirmative defenses and the police report. Accordingly, it cannot be said that the
arbitration awards were arbitrary and capricious or unsupported by any reasonable hypothesis. Consequently, the judgment is affirmed.