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Grobman v. Chernoff

June 9, 2009

LINDSAY GROBMAN, APPELLANT,
v.
RHONDA CHERNOFF, ET AL., DEFENDANTS, RHONDA GLOBMAN, ETC., ET AL., RESPONDENTS.



In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated August 4, 2008, as granted that branch of the cross motion of the defendants Rhonda Globman, also known as Rhonda Grobman and Adam J. Chernoff which was, in effect, to disallow the plaintiff pre-arbitration award interest upon an arbitration award dated April 9, 2008, determining, after a hearing on the issue of damages only, that the plaintiff was entitled to an award of damages in the amount of $125,000, and, in effect, directed that interest at the "judgment rate" was to run from the date of the arbitration award to the date of the plaintiff's receipt of payment of the award.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., HOWARD MILLER, EDWARD D. CARNI and WILLIAM E. McCARTHY, JJ.

(Index No. 24250/98)

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendants Rhonda Globman, also known as Rhonda Grobman and Adam J. Chernoff which was, in effect, to disallow the plaintiff pre-arbitration award interest upon the arbitration award dated April 9, 2008, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment pursuant to CPLR 7514(a), in accordance herewith.

On August 22, 1996, the plaintiff was involved in an automobile accident. She was a passenger in a vehicle driven by the defendant Adam J. Chernoff, and owned by the defendant Rhonda Globman, also known as Rhonda Grobman (hereinafter the respondents). A bifurcated trial was held in the plaintiff's ensuing action to recover damages for her personal injuries. Following the liability phase, on June 25, 2000, a jury found the respondents 100% at fault in the happening of the accident.

In the subsequent trial on the issue of damages, the jury found, among other things, that the plaintiff had sustained a "permanent consequential limitation of use of a body organ or member" (Insurance Law § 5102[d]). It awarded her damages for future medical expenses, but did not award anything for future pain and suffering. A judgment subsequently was entered upon the verdict in the principal sum of $10,000, composed of $1,100 for past pain and suffering and $8,900 for future medical expenses.

On appeal, this Court reversed the judgment, agreeing with the plaintiff that the jury's verdict was inconsistent in finding that she sustained a "permanent consequential limitation of use of a body organ or member" (Insurance Law § 5102[d]), and in awarding damages for future medical expenses, but in failing to her award her any damages for future pain and suffering. The matter was remitted for a new trial on the issue of damages (see Ajoudanpour v Globman, 2 AD3d 373).

Thereafter, the parties agreed to submit the issue of damages to an arbitrator for resolution. However, a dispute arose as to whether the issue of "serious injury" should be submitted in that forum. The plaintiff refused to submit the issue to arbitration, and the arbitrator refused to hear the case if that issue was excluded. The respondents then moved in the Supreme Court to compel the plaintiff to proceed to arbitration on the issue of damages, including the issue whether she sustained a serious injury within the meaning of the Insurance Law. The plaintiff opposed the motion. In an order dated January 20, 2006, the Supreme Court granted the respondents' motion, and directed the arbitrator to decide all issues, including the threshold issue of serious injury.

In a decision and order dated December 19, 2006 (see Grobman v Chernoff, 35 AD3d 658), this Court reversed, concluding that the jury's determination that the plaintiff sustained a serious injury, which the defendants failed to challenge on the first appeal, constituted a final and binding determination of the issue, which could not be relitigated in arbitration.

The arbitration agreement, dated December 13, 2004, contains a section with a heading which reads, "AT ISSUE: Damages," and it further reflects the parties' agreement to high/low parameters of $150,000 and $10,000. The agreement is silent on the issue of whether any damages award was to include interest.

A hearing was held before an arbitrator, who rendered an award in the plaintiff's favor in the sum of $125,000, on April 9, 2008. The award was silent on the issue of interest.

Thereafter, the plaintiff moved, inter alia, pursuant to CPLR article 75 to confirm the award, and to enter judgment thereon. The respondents submitted an affirmation of counsel in "partial opposition" to the motion. As relevant here, the respondents' counsel stated that a check in the sum of $125,000, dated May 23, 2008, had been tendered to the plaintiff's attorney, who "implied" that the plaintiff was entitled to interest in the amount of ...


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