Allstate Ins. Co. (Schlueter), In re

• Decision Date: 30 December 1999
• Docket Number: No. 2,2
• Parties: 1999 N.Y. Slip Op. 11,400 Matter of the Arbitration Between ALLSTATE INSURANCE COMPANY, Petitioner-Appellant, and Richard A. SCHLUETER, Respondent-Respondent, et al., Respondent. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 682

701 N.Y.S.2d 682

1999 N.Y. Slip Op. 11,400

Matter of the Arbitration Between ALLSTATE INSURANCE COMPANY, Petitioner-Appellant, and

Richard A. SCHLUETER, Respondent-Respondent, et al., Respondent. (Appeal No. 2.)

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 1999.

Thomas P. Durkin, Geneseo, for Petitioner-Appellant.

Howard B. Cohen, for Respondent-Respondent.

MEMORANDUM:

The petition to vacate the award of the SUM Arbitration Tribunal (Tribunal) pursuant to CPLR 7511(b)(1)(iii) on the ground that the Tribunal exceeded its power in determining that the other vehicle was uninsured was properly denied by Supreme Court. This appeal from a judgment entered upon an order confirming an arbitration award brings up for review any nonfinal judgments or orders that necessarily affect the final judgment (see, CPLR 5501[a] ). The issue of arbitrability, however, was decided on the petition to stay arbitration (see, CPLR 7503[b] ), and the order dismissing that petition was final (see, Matter of Barnes [Council 82, AFSCME (Monroe) ], 246 A.D.2d 755, 756, 666 N.Y.S.2d 527; Matter of Barnes [Council 82, AFSCME], 235 A.D.2d 826, 652 N.Y.S.2d 383; see also, Flanagan v. Prudential-Bache Sec., 67 N.Y.2d 500, 505, n. 2, 504 N.Y.S.2d 82, 495 N.E.2d 345, cert. denied 479 U.S. 931, 107 S.Ct. 402, 93 L.Ed.2d 355). Matter of Commerce & Indus. Ins. Co. v. Nester, 90 N.Y.2d 255, 660 N.Y.S.2d 366, 682 N.E.2d 967 involved separate appeals from an order denying a stay of arbitration and an order confirming the award.

We reject petitioner's contention that the award lacks evidentiary support and is arbitrary and capricious (see, MVAIC v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349). Finally, we determine that the court acted properly to confirm the award pursuant to CPLR 7511(e).

Judgment unanimously affirmed with costs. (Appeal from Judgment of Supreme Court, Livingston County, Alonzo, Jr., J.--Arbitration.)

PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ., concur.