Brentnall v. Nationwide Mut. Ins. Co.
| Decision Date | 01 June 1993 |
| Citation | 598 N.Y.S.2d 315,194 A.D.2d 537 |
| Parties | In the Matter of Elda BRENTNALL, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph F. Spencer, Bronxville, for appellant.
Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh (George A. Kohl II, of counsel), for respondent.
Before LAWRENCE, J.P., and O'BRIEN, COPERTINO and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the appeal is from an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 22, 1991, which, inter alia, granted the petitioner's motion to confirm a $10,000 award in her favor pursuant to an underinsured motorist policy endorsement.
ORDERED that the order is affirmed, with costs.
While CPLR 7511(a) states that an application to vacate or modify an award shall be made by a party within 90 days after its delivery to him, the party may wait and make his arguments for vacating or modifying the award in opposition to a motion to confirm the award (see, State Farm Mut. Auto. Ins. Co. v. Fireman's Fund Ins. Co., 121 A.D.2d 529, 504 N.Y.S.2d 24; see also, Karlan Constr. Co. v. Burdick Assocs. Owners Corp., 166 A.D.2d 416, 560 N.Y.S.2d 480; Vilceus v. North Riv. Ins. Co., 150 A.D.2d 769, 542 N.Y.S.2d 26). However, we find that the Supreme Court properly rejected the claim of Nationwide Mutual Insurance Company (hereinafter Nationwide) that the award lacked a rational basis. The medical report submitted by the petitioner in support of her claim, which included objective findings by her treating physician with respect to the permanency of the injuries she had sustained as a result of the accident, which occurred nearly two years before the submitted prognosis, provided an adequate basis for the arbitrator to find that petitioner had sustained "serious injury" as defined by Insurance Law § 5102(d) (see, Matter of Commercial Union Ins. Co. v. Ewall, 168 A.D.2d 247, 249, 562 N.Y.S.2d 484; cf., Matter of Fernandez [Universal Underwriters Ins. Co.], 130 A.D.2d 657, 658, 515 N.Y.S.2d 588).
We have examined Nationwide's contentions with respect to the applicability and validity of the policy set-off clause contained in the underinsurance endorsement and find them to be without merit (see, Matter of Federal Ins. Co. v. Reingold, 181 A.D.2d 769, 581 N.Y.S.2d 249; Passaro v. Metropolitan Prop. & Liab. Ins. Co., 128 Misc.2d 21, ...
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James Valley Grain Llc v. David
...to a motion to confirm. See In re Katz, 18 Misc.2d 576, 187 N.Y.S.2d 511 (N.Y.1959). See also Brentnall v. Nationwide Mut. Ins. Co., 194 A.D.2d 537, 598 N.Y.S.2d 315 (N.Y.App.Div.1993). The language in New York's statutes governing the procedure for confirming and vacating an arbitration aw......
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Prasad, M.D., Inc. v. Investors Associates, Inc., No. CIV. A. 99-2512 (JAG).
...to a motion to confirm the award — even if no challenge was raised in the first 90 days. See Brentnall v. Nationwide Mut. Ins. Co., 194 A.D.2d 537, 598 N.Y.S.2d 315, 316 (1993). Consequently, Respondents argue, under New York law, their challenge to the validity of the arbitration award is ......
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...an application to confirm the award notwithstanding the expiration of the 90–day period ( see Matter of Brentnall v. Nationwide Mut. Ins. Co., 194 A.D.2d 537, 538, 598 N.Y.S.2d 315 [2nd Dept. 1993] ). Here, respondent did neither. Indeed, it was petitioner who appealed the lower court's ref......
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