Carlo Service Corp. v. Rachmani
| Decision Date | 20 July 1978 |
| Citation | 64 A.D.2d 579,407 N.Y.S.2d 700 |
| Court | New York Supreme Court — Appellate Division |
| Parties | CARLO SERVICE CORP., Petitioner-Appellant, v. Bahram RACHMANI, Respondent-Respondent. |
W. Dinkes, New York City, for petitioner-appellant.
P. J. Mahoney, Albany, for respondent-respondent.
Before MURPHY, P. J., and SILVERMAN, EVANS, LANE and MARKEWICH, JJ.
Order and Judgment (one paper), Supreme Court, New York County, entered February 15, 1978, which denied petitioner's application to vacate and set aside the award of an arbitrator and granted the cross-motion of respondent to confirm the award is unanimously reversed on the law without costs and without disbursements, the cross-motion is denied and the motion to vacate is granted and the matter remanded to the arbitrator for rehearing to ascertain and deduct the recoverable Workmen's Compensation benefits.
The respondent here is a taxicab driver injured in the course of his duties in petitioner's employ. Respondent claimed injury and demanded payment under the No-Fault Law (Comprehensive Automobile Reparations Act, Ins. Law Sec. 670 Et seq.) for loss of wages and medical expenses. He made no application for Workmen's Compensation for payment of the loss. Petitioner denied no-fault benefits on the ground that Workmen's Compensation was available. Upon such denial respondent submitted his claim to arbitration as provided by the No-Fault Law.
In determining that the claimant was not limited to Workmen's Compensation, the arbitrator held that "the fact that under sec. 671(2b) ((2)(b)) Insurance Law, possible Workmen's Compensation benefits are deductible from Basic Economic Loss would indicate that the claimant herein is not precluded in this case." He thereafter made an award of no-fault benefits for medical expenses and loss of wages. Insurance Law Section 671(2)(b) provides reimbursement to a person for personal injuries arising out of the use or operation of a motor vehicle in this state less "amounts recovered or recoverable on account of such injury under state or federal laws providing workmen's compensation benefits . . ."
In Mount St. Mary's Hospital of Niagara Falls v. Catherwood, 26 N.Y.2d 493, 311 N.Y.S.2d 863, 260 N.E.2d 508, the court made distinction between compulsory and voluntary arbitration, holding that although CPLR sec. 7511 was drafted to apply to voluntary arbitration, an expanded interpretation of that section permitted a review of compulsory arbitration awards and holding, at p. 508, 311 N.Y.S.2d at p. 875, 260 N.E.2d at p. 516: "On this view, CPLR 7511 (subd. (b)), in authorizing review of whether the arbitrator has exceeded his power, by necessary logical extension and without distortion of its literal terms includes review in...
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...633, 379 N.E.2d 161). The Grello suggestion also seems to have been relied upon by the First Department in Carlo Serv. Corp. v. Rachmani, 64 A.D.2d 579, 407 N.Y.S.2d 700, and by Special Term in Hartford Ins. Group v. Mendez, 93 Misc.2d 957, 404 N.Y.S.2d 519. Furthermore, the same inference ......
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