Opinion
886 CA 18–00276
09-28-2018
Christie WHITNEY, Plaintiff–Respondent, v. Jacob R. PERROTTI, Defendant–Appellant.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JEFFREY SENDZIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. DEMPSEY & DEMPSEY, BUFFALO (CATHERINE B. DEMPSEY OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JEFFREY SENDZIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
DEMPSEY & DEMPSEY, BUFFALO (CATHERINE B. DEMPSEY OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted, and the arbitration award is confirmed.
Memorandum: Defendant appeals from an order that granted plaintiff's motion seeking to vacate an arbitration award and denied defendant's cross motion to confirm the arbitration award.
This case arose from a motor vehicle accident that occurred when plaintiff's vehicle was struck from behind by defendant's vehicle. Plaintiff commenced this negligence action, and the parties submitted the case to binding arbitration. Following the arbitration proceeding, which was not transcribed, the arbitrator determined that defendant's negligence was the sole cause of the accident but that plaintiff failed to establish that such negligence was a substantial factor in causing plaintiff to sustain a serious injury pursuant to Insurance Law § 5102(d). Supreme Court granted plaintiff's motion to vacate the arbitration award and denied the cross motion on the ground that the arbitration award was "imperfectly made" because the arbitration proceeding was not transcribed and the arbitration award failed to set forth in detail the arbitrator's reasoning. We reverse the order, deny the motion, grant the cross motion, and confirm the award.
"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] ). 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 or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" ( CPLR 7511[b][1][iii] ).
We agree with defendant that the arbitration award is not irrational. 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] ), i.e., "there is no proof whatever to justify the award" ( 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] [internal quotation marks omitted] ). Where, however, "an arbitrator offers even a barely colorable justification for the outcome reached, the arbitration award must be upheld" ( id. [internal quotation marks omitted] ). Here, the arbitrator's determination is not irrational inasmuch as defendant submitted evidence establishing that plaintiff's injuries were not serious or were not caused by the accident (see Matter of Mays–Carr [State Farm Ins. Co.], 43 A.D.3d 1439, 1440, 842 N.Y.S.2d 835 [4th Dept. 2007] ; see generally Doucette v. Cuviello, 159 A.D.3d 1528, 1529, 73 N.Y.S.3d 334 [4th Dept. 2018] ; Bleier v. Mulvey, 126 A.D.3d 1323, 1324, 5 N.Y.S.3d 749 [4th Dept. 2015] ; Cummings v. Jiayan Gu, 42 A.D.3d 920, 922, 839 N.Y.S.2d 663 [4th Dept. 2007] ).
Plaintiff correctly concedes that the arbitrator did not "imperfectly execute[ ]" his power ( CPLR 7511[b][1][iii] ), inasmuch as the arbitration award did not " ‘leave[ ] the parties unable to determine their rights and obligations,’ " fail to " ‘resolve the controversy submitted or ... create[ ] a new controversy’ " ( Yoonessi v. Givens, 78 A.D.3d 1622, 1622–1623, 910 N.Y.S.2d 801 [4th Dept. 2010], lv denied 17 N.Y.3d 718, 2011 WL 5839697 [2011], quoting Matter of Meisels v. Uhr , 79 N.Y.2d 526, 536, 583 N.Y.S.2d 951, 593 N.E.2d 1359 [1992] ).
Additionally, "it is well established that an arbitrator's failure to set forth his [or her] findings or reasoning does not constitute a basis to vacate an award" ( Berman v. Congregation Beth Shalom, 171 A.D.2d 637, 637, 567 N.Y.S.2d 121 [2d Dept. 1991], lv dismissed 78 N.Y.2d 899, 573 N.Y.S.2d 458, 577 N.E.2d 1050 [1991] ; see Tilbury Fabrics v. Stillwater, Inc., 81 A.D.2d 532, 533, 438 N.Y.S.2d 82 [1st Dept. 1981], affd 56 N.Y.2d 624, 450 N.Y.S.2d 478, 435 N.E.2d 1093 [1982] ); Finley v. Manhattan Dev. Ctr., Off. of Mental Retardation, 119 A.D.2d 425, 426, 500 N.Y.S.2d 256 [1st Dept. 1986] ; Matter of Reddick & Sons of Gouverneur v. Carthage Cent. Sch. Dist. No. 1, 91 A.D.2d 1182, 1182, 459 N.Y.S.2d 156 [4th Dept. 1983] ).