Opinion
6575N Index 654453/16
05-15-2018
In re AMTRUST GROUP, etc., Petitioner–Appellant, v. AMERICAN TRANSIT INSURANCE COMPANY, Respondent–Respondent.
Marchhausen & Fitzpatrick, P.C., Hicksville (Kevin P. Fitzpatrick of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondent.
Marchhausen & Fitzpatrick, P.C., Hicksville (Kevin P. Fitzpatrick of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondent.
Richter, J.P., Andrias, Webber, Gesmer, Moulton, JJ.
Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered April 24, 2017, which denied the petition to vacate an arbitration award, dismissed the petition, and confirmed the arbitrator's award in favor of respondent American Transit Insurance Company, unanimously affirmed, without costs.
Where, as here, arbitration is compulsory pursuant to Insurance Law § 5105(b), "the arbitrator's findings are subject to ‘closer judicial scrutiny’ than a voluntary arbitration, and the award ‘must have evidentiary support and cannot be arbitrary and capricious' " ( Matter of DTG Operations, Inc. v. AutoOne Ins. Co., 144 A.D.3d 422, 422, 40 N.Y.S.3d 392 [1st Dept. 2016], quoting Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349 [1996] ). Here, petitioner did not meet its burden of establishing its prima facie entitlement to benefits (see Matter of DiNapoli v. Peak Automotive, Inc., 34 A.D.3d 674, 675, 824 N.Y.S.2d 424 [2d Dept. 2006] ). The arbitrator's finding was based upon petitioner's failure to comply with the PIP rules, namely, the absence of a proper payment ledger, which was a threshold issue, and was therefore rational, as it was based on the evidence before him (see Matter of Public Serv. Mut. Ins. Co. v. Fiduciary Ins. Co. of Am., 123 A.D.3d 933, 934, 999 N.Y.S.2d 135 [2d Dept. 2014] ).