October 4, 2019

Allstate Ins. Co. v Brown (2019 NY Slip Op 51560(U))

Headnote

The appellate term affirmed the denial of Allstate Insurance Company's petition to vacate a master arbitration award in favor of Victoria Brown. Allstate failed to demonstrate the existence of any statutory grounds for vacating the award, as the master arbitrator found that the decision was rational and not arbitrary or capricious. The arbitrator's rejection of Allstate's IME no show defense was based on evidence, including proof of mailing the IME notices and the claimant's previous appearances at IMEs. Additionally, Allstate did not dispute that the parties had agreed to limit the issue before the arbitrator to the IME no show defense. Therefore, the court held that there were no grounds for vacating the award, and affirmed the judgment in favor of Victoria Brown.

Reported in New York Official Reports at Allstate Ins. Co. v Brown (2019 NY Slip Op 51560(U))

Allstate Ins. Co. v Brown (2019 NY Slip Op 51560(U)) [*1]

Allstate Ins. Co. v Brown

2019 NY Slip Op 51560(U) [65 Misc 3d 130(A)]

Decided on October 4, 2019

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 4, 2019

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
570204/19

Allstate Insurance Company, Petitioner-Appellant,
against
Victoria Brown, Defendant-Respondent.

Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Mary V. Rosado, J.), entered on or about April 26, 2018, which denied its petition to vacate a master arbitration award in favor of respondent and confirmed the award.

Per Curiam.

Order and judgment (Mary V. Rosado, J.), entered on or about April 26, 2018, affirmed, with $25 costs.

Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (see CPLR 7511[b]). “Since the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary or capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings there were no grounds for its vacatur; the motion court correctly upheld the master arbitrator’s determination” (Matter of Miller v Elrac, LLC, 170 AD3d 436 [2019], lv denied 33 NY3d 907 [2019]). In particular, since the arbitrator’s rejection of petitioner’s IME no show defense was based, inter alia, upon her review of the proof of mailing the IME notices, the claimant’s appearance at eight prior scheduled IMEs and petitioner’s treatment of claimant as an adversary, the determination was therefore rational, as it was based on the evidence before her (see Matter of Amtrust Group v American Tr. Ins. Co., 161 AD3d 537 [2018]; Park v Long Is. Ins. Co., 13 AD3d 506 [2004]; Empire Mut. Ins. Co. v Hornick, 189 AD2d 707 [1993]).

We note that petitioner does not dispute that the parties agreed, in effect, to bifurcate the arbitration so as to limit the issue before the arbitrator to a determination of the IME no show defense. In the circumstances, petitioner’s complaint that the arbitrator did not resolve other issues is unavailing (see American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 167 AD3d 142 [2018]).

We have considered petitioner’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 04, 2019