Freiberg, Peck & Kang, LLP, Armonk, NY (Yilo J. Kang of
counsel), for appellant.
Catherine M. Charles (Lawrence R. Miles, Long Island City,
NY, of counsel), for respondent.
REINALDO E. RIVERA, J.P. SHERI S. ROMAN ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
proceeding pursuant to CPLR 7511 to vacate two arbitration
awards, both dated March 11, 2014, the petitioner appeals
from an order and judgment (one paper) of the Supreme Court,
Kings County (Silber, J.) entered June 17, 2015, which denied
the petition, in effect, dismissed the proceeding, and
granted the respondent's cross petition to confirm the
that the order and judgment is affirmed, with costs.
to Insurance Law § 5105, the respondent, as subrogee of
Fatimah Salaam and Kim McCorey, commenced two related
loss-transfer arbitration proceedings against the petitioner
arising out of payments the respondent made in connection
with a collision between two vehicles, one of which had been
insured by the petitioner and the other by the respondent.
The respondent paid first-party benefits to Salaam and
McCorey, who had been passengers in a "for hire"
vehicle insured by the respondent that was struck in the rear
by the other vehicle, which, at the time of the accident, was
insured by the petitioner. The petitioner participated in the
arbitration and opposed any payments to the respondent,
arguing that, after the accident, it had rescinded its policy
retroactively, so that it provided no coverage as of the date
of the accident. The arbitrator, rejecting that argument,
made two awards in favor of the respondent. The petitioner
commenced this proceeding pursuant to CPLR 7511 to vacate the
awards, and the respondent cross-petitioned to confirm the
awards. In the order and judgment appealed from, the Supreme
Court denied the petition and granted the cross petition. The
petitioner appeals from the order and judgment, contending,
inter alia, that the arbitrator was without jurisdiction to
decide the issue and that the arbitrator should have applied
Pennsylvania rather than New York law because the subject
policy was procured in Pennsylvania. We affirm.
petitioner's contention that, pursuant to 11 NYCRR
65-4.11(6), its "good faith" retroactive denial of
insurance coverage divested the arbitrator of jurisdiction is
without merit (see State Farm Mut. Auto. Ins. Co. v
Nationwide Mut. Ins. Co., 150 A.D.2d 976, 977-978).
Insurance Law § 5105(b) provides that arbitration is the
only forum in which a loss-transfer claim may be litigated
(see Paxton Natl. Ins. Co. v Merchants Mut. Ins.
Co., 74 A.D.2d 715, 716). Moreover, "the contention
that a claim proposed to be submitted to arbitration is in
excess of the arbitrator's power is waived unless raised
by an application for a stay" (Matter of Silverman
[Benmor Coats], 61 N.Y.2d 299, 309; see Matter of
Allstate Ins. Co. v New York Petroleum Assn. Compensation
Trust, 104 A.D.3d 682; Matter of Philadelphia Ins.
Co. [Utica Natl. Ins. Group], 97 A.D.3d 1153; Matter
of Utica Mut. Ins. Co. v Incorporated Vil. of Floral
Park, 262 A.D.2d 565). By failing to apply for a stay of
arbitration before arbitration, the petitioner waived its
contention that the claim is not arbitrable under Insurance
Law § 5105 (see Rochester City School Dist. v
Rochester Teachers Assn., 41 N.Y.2d 578, 583; Matter
of County of Onondaga [Civil Serv. Empls. Assn.], 248
A.D.2d 1026; Matter of Liberty Mut. Ins. Co. [Allstate
Ins. Co.], 234 A.D.2d 901; Matter of Arner v Liberty
Mut. Ins. Co., 233 A.D.2d 321).
petitioner also failed to establish any basis under CPLR
7511(b)(1) to vacate the arbitration awards (see Matter
of Domotor v State Farm Mut. Ins. Co., 9 A.D.3d 367).
Moreover, any possible error by the arbitrator in applying
New York law (see Vehicle and Traffic Law §
313[a]) rather than Pennsylvania law does not provide a
basis for vacatur (see Matter of Yarmak v Penson Fin.
Servs., Inc., 146 A.D.3d 642).
petitioner's remaining contention is without merit.
we affirm the order and judgment.
RIVERA, J.P., ROMAN, MILLER and ...