June 10, 2004

Victoria Ins. Co. v Utica Mut. Ins. Co. (2004 NY Slip Op 04859)

Headnote

The main facts considered by the court were that Utica Mutual Insurance Company failed to answer a petition brought by Victoria Insurance Company to confirm three arbitration awards. Utica argued that the arbitrator committed misconduct by refusing to grant an adjournment to permit its investigator to appear. Utica also claimed that the claims paid by Victoria Insurance and for which it sought reimbursement were fraudulent. Additionally, Utica argued that the truck involved in the accident was not modified to increase its weight to more than 6,500 pounds and that there was no basis for reimbursement of nonreimbursable no-fault benefits. The main issue decided by the court was whether Utica made the necessary showing of merit in its application to vacate its default. The holding of the court was that Utica did not make the necessary showing of merit, and that the denial of the vacatur application was affirmed.

Reported in New York Official Reports at Victoria Ins. Co. v Utica Mut. Ins. Co. (2004 NY Slip Op 04859)

Victoria Ins. Co. v Utica Mut. Ins. Co.

2004 NY Slip Op 04859 [8 AD3d 87]

June 10, 2004

Appellate Division, First Department

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

As corrected through Wednesday, August 25, 2004

Victoria Insurance Company, Respondent,
v
Utica Mutual Insurance Company, Appellant.

—[*1]

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 10, 2003, which denied the application of Utica Mutual Insurance Company to vacate its default in failing to answer a petition brought by Victoria Insurance Company to confirm three arbitration awards, unanimously affirmed, with costs.

Utica Mutual did not, in support of its vacatur application, make the necessary showing of merit. Contrary to its contention, the arbitrator did not commit misconduct in refusing to grant an adjournment to permit Utica’s investigator to appear, since Utica had not given notice that it would call a witness. In any event, the investigator’s testimony would have been duplicative of reports previously submitted in an attempt to establish that the claims paid by Victoria Insurance and for which it sought reimbursement from Utica were fraudulent. Furthermore, since Utica has not offered any affidavit from its insured, the owners of the truck that caused the accident, to show that, contrary to Department of Motor Vehicles records, the truck was not modified to increase its weight to more than 6,500 pounds, we perceive no basis to conclude that there is merit to Utica’s argument that this was not an instance in which reimbursement of otherwise nonreimbursable no-fault benefits was permitted pursuant to Insurance Law § 5105 (a).

Although the awards did not meet the requirements of CPLR 7507 that they be signed and affirmed by the arbitrator, and the issue is a question of law that can be raised for the first time on appeal (see Chateau D’If Corp. v City of New York, 219 AD2d 205, 209-210 [1996], lv denied 88 NY2d 811 [1996]), Utica is estopped from now raising the issue. Had it been raised as one of the affirmative defenses asserted by Utica in its proposed answer, Victoria would have been able to obtain a signed copy of the award from the arbitrator within the one-year period for bringing a proceeding to confirm an award. [*2]

We have reviewed Utica’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Ellerin, Williams and Gonzalez, JJ.