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June 10, 2004

Victoria Ins. Co. v Utica Mut. Ins. Co. (2004 NY Slip Op 04859)

https://www.beynensonlaw.com/case-law/victoria-ins-co-v-utica-mut-ins-co-2004-ny-slip-op-04859/

Court
Appellate Division, First Department
Decided
June 10, 2004
Citation
2004 NY Slip Op 04859 · 8 AD3d 87
Posture
Default or vacatur
Later treatment
Contrasted (cf., but see) in 1 and followed in 1 later decisions (see Cited by)
Issues
Defaults and vacatur CPLR article 75 (arbitration awards) Priority, other coverage
Legal questions
Vacating a default: excuse and defense (see the maps)
Cite as
Victoria Ins. Co. v Utica Mut. Ins. Co., 8 AD3d 87 (1st Dept 2004)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The respondent insurer failed to show a meritorious defense to confirmation of three loss-transfer arbitration awards. The Appellate Division, First Department, affirmed denial of its application to vacate its default in answering the petition. Refusal to adjourn for an unannounced investigator was not misconduct, and the proposed testimony duplicated reports already submitted. No insured affidavit rebutted DMV records showing the truck exceeded 6,500 pounds, supporting reimbursement under Insurance Law § 5105 (a). Although the awards lacked signatures and affirmations required by CPLR 7507, the insurer was estopped from raising that defect after omitting it from the proposed answer, depriving the petitioning insurer of an opportunity to obtain signed awards within the one-year confirmation period.

Reported in New York Official Reports at Victoria Ins. Co. v Utica Mut. Ins. Co. (2004 NY Slip Op 04859)

Victoria Ins. Co. v Utica Mut. Ins. Co.
2004 NY Slip Op 04859 [8 AD3d 87]
June 10, 2004
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 25, 2004
Victoria Insurance Company, Respondent,
v
Utica Mutual Insurance Company, Appellant.

—[*1]

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 10, 2003, which denied the application of Utica Mutual Insurance Company to vacate its default in failing to answer a petition brought by Victoria Insurance Company to confirm three arbitration awards, unanimously affirmed, with costs.

Utica Mutual did not, in support of its vacatur application, make the necessary showing of merit. Contrary to its contention, the arbitrator did not commit misconduct in refusing to grant an adjournment to permit Utica’s investigator to appear, since Utica had not given notice that it would call a witness. In any event, the investigator’s testimony would have been duplicative of reports previously submitted in an attempt to establish that the claims paid by Victoria Insurance and for which it sought reimbursement from Utica were fraudulent. Furthermore, since Utica has not offered any affidavit from its insured, the owners of the truck that caused the accident, to show that, contrary to Department of Motor Vehicles records, the truck was not modified to increase its weight to more than 6,500 pounds, we perceive no basis to conclude that there is merit to Utica’s argument that this was not an instance in which reimbursement of otherwise nonreimbursable no-fault benefits was permitted pursuant to Insurance Law § 5105 (a).

Although the awards did not meet the requirements of CPLR 7507 that they be signed and affirmed by the arbitrator, and the issue is a question of law that can be raised for the first time on appeal (see Chateau D’If Corp. v City of New York, 219 AD2d 205, 209-210 [1996], lv denied 88 NY2d 811 [1996]), Utica is estopped from now raising the issue. Had it been raised as one of the affirmative defenses asserted by Utica in its proposed answer, Victoria would have been able to obtain a signed copy of the award from the arbitrator within the one-year period for bringing a proceeding to confirm an award. [*2]

We have reviewed Utica’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Ellerin, Williams and Gonzalez, JJ.

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Vacating a default: excuse and defense

Open the full map

Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?

This decision: Relief denied because no potentially meritorious defense or cause of action was shown; excuse accepted or not reached

Held the insurer's default in answering the petition not vacated because it showed no merit: no arbitrator misconduct in refusing an adjournment, and no affidavit from its insured rebutting DMV records on the truck's weight.

  • Appellate DivisionApp Div 4
  • Appellate TermApp Term 2
  • Trial courtsTrial 6
2017, Appellate Division: 1 decision (1 No reasonable excuse)2013, Appellate Division: 1 decision (1 Default excused)2004, Appellate Division: 1 decision (1 No meritorious defense)2025, Appellate Division: 1 decision (1 No reasonable excuse)2016, Appellate Term: 1 decision (1 No reasonable excuse)2012, Appellate Term: 1 decision (1 Default excused)2021, Trial courts: 2 decisions (2 Default excused)2020, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2008, Trial courts: 1 decision (1 Neither shown)2025, Trial courts: 1 decision (1 No meritorious defense)This decision
20052010201520202025
Default excusedNo reasonable excuseNo meritorious defenseNeither shownThis decision

Of the 12 decisions on this question in the First Department courts and the Court of Appeals, 2 (this one included) are in the same category.

Cited by

A label shows how the later decision treated this one.

  • Matter of Progressive Northeastern Ins. Co. (New York State Ins. Fund) (2008 NY Slip Op 09334) Contrasted (cf., but see)Loss-transfer recovery based on use for hire requires proof that a vehicle was principally used for that purpose.
  • Allstate Ins. Co. v Republic W. Ins. Co. (2006 NYSlipOp 50125(U)) FollowedThe responding insurer waived its objection to arbitrability of a no-fault subrogation claim by failing to seek a stay before arbitration.

Similar decisions

  • Matter of Utica Mut. Ins. Co. (Selective Ins. Co. of Am.) (2006 NY Slip Op 02261)An internally inconsistent compulsory loss-transfer award may be vacated for failure to make a final and definite determination.
  • Matter of American Tr. Ins. Co. v Nationwide Mut. Ins. Co. (2008 NY Slip Op 50295(U))An insurer may raise grounds for vacatur in opposition to confirmation even after CPLR 7511's 90-day period has expired.
  • Matter of State Farm Mut. Auto. Ins. Co. v Motor Veh. Acc. Indem. Corp. (2006 NY Slip Op 00548)The petitioning insurer failed to establish grounds to vacate an arbitration award entered after proper notice and its nonparticipation.
  • Matter of MVAIC v Interboro Med. Care & Diagnostic PC (2010 NY Slip Op 04522)MVAIC's lack-of-coverage defense is not precluded by failure to pay or deny a no-fault claim within 30 days.
  • Diamond Chiropractic, P.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 51286(U))CPLR 7511 (e) requires confirmation of an award when a petition to vacate the master arbitrator's determination is denied.
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