Matter of State Farm Mut. Auto. Ins. Co. v Mutual Serv. Cas. Ins. Co. (2004 NY Slip Op 51293(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by petitioner from an order of the Civil Court, Queens County (A. Agate, J.), entered August 4, 2003, denying its petition to vacate an arbitrator’s award.

Order unanimously reversed without costs, petition granted, arbitrator’s award vacated and matter remanded for arbitration.

Pursuant to the mandatory arbitration provisions of Insurance Law § 5105 et seq., petitioner State Farm Mutual Automobile Insurance Company (State Farm) filed a demand for arbitration in April 2002 seeking reimbursement of no-fault payments it made to its subrogor commencing in May 1999. Arbitration Forums, Inc. denied the claim on the ground that the three year statute of limitations had expired. State Farm commenced a special proceeding to vacate the arbitrator’s award. The court below denied the petition, finding that petitioner “did not specify the dates of the payments to the claimant or include any documentary proof. Rather, [petitioner] attached its demand for arbitration and the decision, neither of which indicate the dates of the initial payments.”

Contrary to the determination of the court below, we find that petitioner submitted documentary proof as to the payments it made to its subrogor by its submission of the affidavit of its claims representative, as well as the other documents included in Exhibit D which was attached to its petition (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1968]). We [*2]further find that the arbitrator’s award dismissing the claim as barred by the statute of limitations was not based on the evidence, and it was arbitrary and capricious for the arbitrator to dismiss the claim since petitioner timely made its demand for arbitration within three years of its first no-fault payment (see CPLR 214 [2]; Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 219-220 [1996]; Matter of Budget Rent-A-Car [State Ins. Fund], 237 AD2d 153 [1997]; Empire Ins. Co. v Eagle Ins. Co., 4 Misc 3d 25 [2004] [App Term, 2d & 11th Jud Dists]; Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [2003] [App Term, 2d & 11th Jud Dists]; Allcity Ins. Co. v GEICO, 2003 NY Slip Op 50898 [U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the petition seeking to vacate the arbitrator’s award is granted and the matter is remanded for arbitration.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
Decision Date: October 27, 2004