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Matter of Gaspard v. Am. Transit Ins. Co.

Appellate Division of the Supreme Court of New York, First Department
Jan 18, 1990
157 A.D.2d 543 (N.Y. App. Div. 1990)

Opinion

January 18, 1990

Appeal from the Supreme Court, New York County (Martin B. Stecher, J.).


The arbitrator, in deciding the petitioner's workers' compensation claims, awarded the petitioner $13,064 and further directed that the respondent pay interest at the rate of 2% per month, compounded, commencing 30 days after proof of claim was received, pursuant to 11 NYCRR 65.15 (g) (3). Respondent's application for review by the master arbitrator was denied as untimely. Respondent nonetheless demanded trial de novo. Petitioner sought confirmation of the awards pursuant to CPLR 7510. In opposing the petition, respondent argued that it had timely sought review by the master arbitrator and that the principal amount of the award was improperly calculated. In opposing petitioner's proposed judgment, respondent argued that interest had been calculated improperly, but offered no details. Petitioner was awarded judgment as indicated.

Respondent now argues that interest was improperly calculated because proof of claim was never properly filed, because interest was improperly awarded on the entire time commencing with the date on which proof of loss was filed, and because interest was determined in the wrong forum. At the IAS court, respondent raised all of these contentions for the first time on a motion for reargument which was denied. Respondent did not appeal from the order denying reargument, nor could it have done so (Silverstein v. Silverstein, 130 A.D.2d 369 [1st Dept 1987]). Its contention in support of reargument cannot form the basis for an appellate attack on the prior order and judgment.

In any case, the arguments are precluded by respondent's failure to raise them in a timely appeal to the master arbitrator (Matter of Carty [Nationwide Ins. Co.], 149 A.D.2d 328 [1st Dept 1989]). The arbitrator's award fully states that interest on the entire judgment amount must be paid commencing with the date on which proof of claim was filed and ending on the date of the judgment. To hold that any other formula should apply would be to usurp the arbitrator's function improperly (Matter of Raisler Corp. [New York City Hous. Auth.], 32 N.Y.2d 274, 282-283). Respondent's argument that no proof of claim was ever received is unsupported.

We have considered the respondent's forum argument and find it to be without merit.

Concur — Sullivan, J.P., Ross, Carro, Milonas and Rosenberger, JJ.


Summaries of

Matter of Gaspard v. Am. Transit Ins. Co.

Appellate Division of the Supreme Court of New York, First Department
Jan 18, 1990
157 A.D.2d 543 (N.Y. App. Div. 1990)
Case details for

Matter of Gaspard v. Am. Transit Ins. Co.

Case Details

Full title:In the Matter of DANIEL A. GASPARD, Respondent, v. AMERICAN TRANSIT…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 18, 1990

Citations

157 A.D.2d 543 (N.Y. App. Div. 1990)