Opinion
442 CA 19-01711
10-09-2020
In the MATTER OF Arbitration Between Christine M. O'CONNELL, Petitioner-Respondent, and State Farm Mutual Automobile Insurance Company, Respondent-Appellant. (Appeal No. 1.)
HURWITZ & FINE, P.C., BUFFALO (STEVEN E. PEIPER OF COUNSEL), FOR RESPONDENT-APPELLANT. GELBER & O'CONNELL, LLC, AMHERST (TIMOTHY G. O'CONNELL OF COUNSEL), FOR PETITIONER-RESPONDENT.
HURWITZ & FINE, P.C., BUFFALO (STEVEN E. PEIPER OF COUNSEL), FOR RESPONDENT-APPELLANT.
GELBER & O'CONNELL, LLC, AMHERST (TIMOTHY G. O'CONNELL OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: CENTRA, J.P., TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: This case arose from a motor vehicle accident that occurred when petitioner's vehicle was struck by a vehicle that failed to stop for a red light. Following petitioner's recovery of damages in an underlying action against the driver of the other vehicle, petitioner submitted a supplemental uninsured/underinsured motorist (SUM) coverage claim to respondent, State Farm Mutual Automobile Insurance Company (State Farm). The matter proceeded to compulsory arbitration, and the arbitrator awarded petitioner $2,250,000, less the setoff amount of $474,771.21, for a total of $1,775,228.79. Supreme Court granted petitioner's motion to confirm the arbitration award and denied State Farm's cross motion to vacate the award. In appeal No. 1, State Farm appeals from a judgment that, inter alia, confirmed the arbitration award. In appeal No. 2, State Farm appeals from an order that, inter alia, granted petitioner's motion to confirm the arbitration award and denied State Farm's cross motion to vacate the award. In appeal No. 3, State Farm appeals from an order denying its application, pursuant to CPLR 2601 and 5519 (c), for an order permitting payment of the judgment into court.
Preliminarily, inasmuch as the order appealed from in appeal No. 2 was subsumed in the judgment appealed from in appeal No. 1, appeal No. 2 must be dismissed (see Hughes v. Nussbaumer, Clarke & Velzy , 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ; see also Matter of Toussie v. Coastal Dev., LLC , 161 A.D.3d 533, 533, 78 N.Y.S.3d 294 [1st Dept. 2018] ; Deragon v. Burkart , 55 A.D.3d 1309, 1309, 866 N.Y.S.2d 841 [4th Dept. 2008] ). Furthermore, inasmuch as State Farm does not challenge any aspect of the order appealed from in appeal No. 3, we dismiss that appeal as abandoned (see Abasciano v. Dandrea , 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 [4th Dept. 2011] ).
We reject State Farm's contention in appeal No. 1 that the arbitration award is arbitrary and capricious, irrational and unsupported by the evidence. "It is well settled that judicial review of arbitration awards is extremely limited" ( Wien & Malkin LLP v. Helmsley-Spear, Inc. , 6 N.Y.3d 471, 479, 813 N.Y.S.2d 691, 846 N.E.2d 1201 [2006], cert dismissed 548 U.S. 940, 127 S.Ct. 34, 165 L.Ed.2d 1012 [2006] ; see Whitney v. Perrotti , 164 A.D.3d 1601, 1602, 85 N.Y.S.3d 289 [4th Dept. 2018] ). As relevant here, a court may vacate an arbitration award if it finds that the rights of a party were prejudiced when "an arbitrator ... exceeded his [or her] power" ( CPLR 7511 [b] [1] [iii] ). An arbitrator exceeds his or her power where, inter alia, the award is "irrational" ( Matter of New York City Tr. Auth. v. Transport Workers' Union of Am., Local 100, AFL-CIO , 6 N.Y.3d 332, 336, 812 N.Y.S.2d 413, 845 N.E.2d 1243 [2005] ). "An award is irrational if there is no proof whatever to justify the award" ( Matter of Town of Scriba [Teamsters Local 317] , 129 A.D.3d 1596, 1597, 12 N.Y.S.3d 422 [4th Dept. 2015] [internal quotation marks omitted]; see Matter of Professional, Clerical, Tech., Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.] , 103 A.D.3d 1120, 1122, 959 N.Y.S.2d 310 [4th Dept. 2013], lv denied 21 N.Y.3d 863, 2013 WL 4563289 [2013] ). If the arbitrator "offers even a barely colorable justification for the outcome reached, the arbitration award must be upheld" ( Whitney , 164 A.D.3d at 1602, 85 N.Y.S.3d 289 [internal quotation marks omitted]; see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.] , 160 A.D.3d 1477, 1477, 72 N.Y.S.3d 908 [4th Dept. 2018], lv denied 32 N.Y.3d 908, 2018 WL 5260188 [2018] ).
Where, as here, the parties are "subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it ‘must have evidentiary support and cannot be arbitrary and capricious’ " ( City School Dist. of the City of N.Y. v. McGraham , 17 N.Y.3d 917, 919, 934 N.Y.S.2d 768, 958 N.E.2d 897 [2011], 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] ). " ‘When reviewing compulsory arbitrations ..., the court should accept the arbitrator's credibility determinations, even when there is conflicting evidence and room for choice exists’ " ( Matter of Powell v. Board of Educ. of Westbury Union Free School Dist. , 91 A.D.3d 955, 955, 938 N.Y.S.2d 123 [2d Dept. 2012] ).
Here, the record establishes that the findings of the arbitrator were rational, had evidentiary support, and were not arbitrary and capricious (see Motor Veh. Acc. Indem. Corp. , 89 N.Y.2d at 223-224, 652 N.Y.S.2d 584, 674 N.E.2d 1349 ; Matter of Bender [Lancaster Cent. Sch. Dist.] , 175 A.D.3d 993, 996, 108 N.Y.S.3d 592 [4th Dept. 2019] ). The arbitrator's decision reflects his review of the parties' submissions, the oral arguments of counsel, and the testimony of petitioner, and the arbitrator's evaluation of the testimony and analyzation of the medical, no-fault, and property damage records. The arbitrator noted that State Farm had conceded that petitioner had no prior relevant medical history but required an extensive three-level spinal surgery at a very young age, and the arbitrator determined that the diagnosis of petitioner's spinal surgeon that petitioner's injuries were caused by the accident was supported by the opinions of the radiologists and other treating physicians. The arbitrator further determined that the diagnosis and opinions of petitioner's spinal surgeon and chiropractor were supported by the objective evidence, whereas the opinions of the neurosurgeon who conducted the independent medical examination of petitioner were at odds with the opinions of the radiologists and petitioner's surgeon regarding the severity and progression of petitioner's injuries. We thus conclude that there is evidentiary support for the arbitrator's conclusion that petitioner is entitled to collect the SUM benefits from State Farm.
We have considered the remaining contentions of State Farm and conclude that none warrants modification or reversal of the judgment.