February 4, 2014

Matter of Kane v Fiduciary Ins. Co. of Am. (2014 NY Slip Op 00593)

Headnote

The court considered the matter of two arbitration awards that were vacated and remanded for a new arbitration before a new arbitrator. The main issue decided was whether the arbitration awards, rendered in compulsory arbitration, were irrational or contrary to settled law, and therefore should have been confirmed. The court held that the arbitral awards were not irrational or contrary to settled law, and therefore should have been confirmed. It was also determined that the respondent insurer's disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy. The court held that the petitioner failed to comply with the conditions precedent to coverage found in the implementing no-fault regulations.

Reported in New York Official Reports at Matter of Kane v Fiduciary Ins. Co. of Am. (2014 NY Slip Op 00593)

Matter of Kane v Fiduciary Ins. Co. of Am.

2014 NY Slip Op 00593 [114 AD3d 405]

February 4, 2014

Appellate Division, First Department

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

As corrected through Wednesday, March 26, 2014

In the Matter of Gaoussou Kane, Respondent,
v
Fiduciary Insurance Company of America, Appellant.

—[*1] Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Harlan S. Budin of counsel), for respondent.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered April 30, 2012, which granted the petition to vacate the arbitration awards, and remanded the matter for a new arbitration before a new arbitrator, unanimously reversed, on the law, without costs, and the arbitration awards reinstated.

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled law, and therefore should have been confirmed. Respondent insurer’s disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-2.4 [c]).

We have considered the parties’ remaining arguments and find them unavailing. Concur—Friedman, J.P., Acosta, Renwick, Manzanet-Daniels and Gische, JJ.