Opinion
April 14, 1993
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Pine, J.P., Balio, Lawton, Boomer and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: We reject petitioner's argument that the arbitration was compulsory and, therefore, subject to the broad judicial review available in CPLR article 78 proceedings (compare, Motor Vehicle Mfrs. Assn. v State of New York, 75 N.Y.2d 175, 186; Caso v Coffey, 41 N.Y.2d 153; Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493, 508, rearg denied 27 N.Y.2d 737). The parties' insurance contract included a provision for arbitration where there is a dispute "[w]hether that person is legally entitled to recover damages under this Part C [uninsured motorists coverage]". Therefore, petitioner must be deemed to have voluntarily consented to the arbitration and the CPLR article 75 standard of judicial review applies (see, Murphy v Wack, 177 A.D.2d 382, 383, appeal dismissed 79 N.Y.2d 977). Thus, here, the arbitrator's "award may not be vacated unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Town of Callicoon [Civil Serv. Empls. Assn.], 70 N.Y.2d 907, 909; see also, CPLR 7511 [b] [1] [iii]; Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 308, rearg denied sub nom. Norris v Cooper, 62 N.Y.2d 803). "Moreover, absent provision in the arbitration clause itself, an arbitrator is not bound by principles of substantive law or by rules of evidence" (Matter of Silverman [Benmor Coats], supra, at 308).
Application of the foregoing standard forces the conclusion that the arbitrator's award has a rational basis, is not violative of a strong public policy and the arbitrator did not exceed his powers (see, Hae Sup Kim v General Acc. Fire Life Ins. Co., 171 A.D.2d 404; see also, Morris v Progressive Cas. Ins. Co., 662 F. Supp. 1489 [SD NY]).
Finally, were we to find that the arbitration herein was compulsory, we would conclude that the award is "in accord with due process and supported by adequate evidence in the record" and is "rational and satisf[ies] the arbitrary and capricious standards of CPLR article 78" (Motor Vehicle Mfrs. Assn. v State of New York, supra, at 186).