Wipf v. AM. TR. INS. CO.

• Decision Date: 20 August 2003
• Citation: 768 N.Y.S.2d 156,196 Misc.2d 919
• Court: New York Supreme Court
• Parties: In the Matter of ALEX WIPF, Petitioner,<BR>v.<BR>AMERICAN TRANSIT INSURANCE COMPANY, Respondent.

196 Misc.2d 919

768 N.Y.S.2d 156

In the Matter of ALEX WIPF, Petitioner,

v.AMERICAN TRANSIT INSURANCE COMPANY, Respondent.

August 20, 2003.

Harold Samuel Herman, New York City, for petitioner.

Short & Billy, P.C., New York City, for respondent.

OPINION OF THE COURT

EDWARD H. LEHNER, J.

The issue before me on this motion by petitioner to confirm the award of interest made in a no-fault arbitration is whether respondent is entitled to commence a de novo challenge relating only to the amount of interest awarded.

By order dated December 10, 2002 I confirmed an arbitration award made in a no-fault dispute, but remanded the matter to the arbitrator "to determine additional interest owing." In that order it was noted that the full principal amount of petitioner's claim had been paid together with some interest, the only dispute remaining relating to additional interest, which respondent challenged asserting that petitioner had delayed the proceeding.

Upon remand, the arbitrator determined that the additional interest owing to petitioner totaled $76,181.76. By notice of motion dated April 16, 2003, petitioner moved to confirm that award. Respondent opposed the application on the grounds that the award was on appeal to a master arbitrator. This proceeding was eventually adjourned until August 8. At the time of argument on that date the papers showed that the master arbitrator had, by decision dated June 30, 2003, fully affirmed the award of the lower arbitrator.

The only opposition to confirmation presented in respondent's reply papers is that it has commenced an action for a de novo adjudication as provided in Insurance Law § 5106 (c). While the motion before me is to review the award of the lower arbitrator, to conserve judicial resources I will treat this application as one to confirm the subsequently made affirming award of the master arbitrator.

Subdivision (c) of Insurance Law § 5106 provides that the award of a master arbitrator is binding except for review pursuant to article 75 of the CPLR provided, however, "that where the amount of such master arbitrator's award is [$5,000] or greater, exclusive of interest and attorney's fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo" (emphasis supplied). Here, respondent has paid the full principal amount of the award and in the de novo action commenced by it the complainant states that "the dispute between the parties is whether the plaintiff is required to pay ...