Opinion
105 SSM 8
Decided April 5, 2005.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 19, 2004. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Erie County (Donna M. Siwek, J.), which had granted a petition to vacate an arbitration award and denied respondent's petition to confirm the award.
After respondent insured received no-fault insurance benefits arising out of an automobile accident, she sought additional personal injury protection benefits, and her application was denied by petitioner insurer for failing to give notice within 90 days of the automobile accident as the policy required. An arbitrator determined that it was impossible for respondent to have given notice because she was unaware of her serious condition until after the 90-day period had expired.
The majority at the Appellate Division concluded that Supreme Court properly determined that it could not disturb the award on the ground that it was based upon an error of law, but only on the ground that the award lacked a rational basis; that even assuming respondent was unaware of her serious condition until more than a year later, within the 90-day period she sought medical treatment, was referred to a specialist and underwent an MRI; that a physician advised her that surgery was required; and that, therefore, there was no rational basis for the arbitrator's finding that it was impossible for respondent to provide the required notice because of circumstances beyond her control, as required by the policy.
The dissent concluded that because the arbitrator's finding was based upon the weighing of factual matters and the record supported that determination, the court was powerless to substitute its determination for that of the arbitrator.
Matter of New York Cent. Mut. Fire Ins. Co. v. Drasgow, 12 AD3d 1038, reversed.
Chelus, Herdzik, Speyer, Monte Pajak, P.C., Buffalo ( Thomas P. Kawalec of counsel), for appellant.
Brown Kelly, LLP, Buffalo ( Joseph M. Schnitter of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH.
OPINION OF THE COURT
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed, with costs, petition to vacate the arbitration award denied and petition to confirm the arbitration award granted, for the reasons stated in the dissenting memorandum at the Appellate Division ( 12 AD3d 1038, 1039-1040), and matter remitted to Supreme Court, Erie County, for consideration of appellant's claim for attorneys' fees.