Opinion
No. 2021-05338 Index No. 600363/21
05-22-2024
In the Matter of Corrine Richardson, respondent, v. Aryeh Markovich, appellant.
Martyn Martyn Smith Murray & Young, Mineola, NY (Nicole D. Fogarty and Shahid Mumtaz of counsel), for appellant. Nichols & Cane, LLP, Syosset, NY (Robert M. Horn of counsel), for respondent.
Martyn Martyn Smith Murray & Young, Mineola, NY (Nicole D. Fogarty and Shahid Mumtaz of counsel), for appellant.
Nichols & Cane, LLP, Syosset, NY (Robert M. Horn of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, LARA J. GENOVESI, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated October 10, 2020, Aryeh Markovich appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered July 14, 2021. The order granted the petition and vacated the arbitration award.
ORDERED that the order is affirmed, with costs.
On December 5, 2016, a motor vehicle operated by Aryeh Markovich struck the rear of a motor vehicle operated by Corrine Richardson (hereinafter the 2016 accident). In 2018, Richardson commenced a personal injury action against Markovich, and, after the completion of discovery, the parties voluntarily entered into an arbitration agreement.
After a hearing, the arbitrator determined that "[t]he evidence fails to disclose that claimant Richardson sustained a serious injury" because she "failed to distinguish between injuries from the two prior accidents and the [2016 accident]." Richardson commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award. The Supreme Court granted the petition and vacated the arbitration award. Markovich appeals.
"[J]udicial review of arbitration awards is extremely limited" (Matter of Briscoe Protective, LLC v North Fork Surgery Ctr., LLC, 215 A.D.3d 956, 957 [internal quotation marks omitted]). "Under CPLR 7511, an [arbitration] award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect" (Hackett v Milbank, Tweed, Hadley & McCloy, 86 N.Y.2d 146, 154-155; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 A.D.3d 659). "An arbitrator exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Village of Spring Val. v Civil Serv. Empls. Assn., Inc., 214 A.D.3d 818, 819, quoting American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 N.Y.3d 64, 70). An award "is irrational only where there is no proof whatever to justify the award" (Matter of Rivera v New York City Tr. Auth., 216 A.D.3d 644, 645 [internal quotation marks omitted]). "'A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence'" (Matter of Village of Spring Val. v Civil Serv. Empls. Assn., Inc., 214 A.D.3d at 819-820, quoting Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 185 A.D.3d 811, 812).
Here, the arbitrator's award was irrational because there was "no proof whatever to justify" the arbitrator's award (Matter of Rivera v New York City Tr. Auth., 216 A.D.3d at 645 [internal quotation marks omitted]). The arbitrator issued an award in Markovich's favor upon a finding that Richardson failed to distinguish between injuries that she purportedly sustained in accidents occurring in 1994 and 1999 and injuries she sustained in the 2016 accident. However, on the issue of damages, Richardson submitted, inter alia, medical reports from her treating physician explaining that Richardson had no history of recent injury and causally relating her claimed injuries to the 2016 accident. Richardson's deposition testimony established that, although she did not remember which body parts, if any, were injured in the 1994 and 1999 accidents, those accidents did not result in any injury to the relevant body parts and that, on both occasions, she returned to work. Markovich did not submit, and the arbitrator did not consider, any other evidence as to Richardson's purported prior injuries. Accordingly, there was "no proof whatever" to justify the arbitrator's award (id. [internal quotation marks omitted]).
Markovich's remaining contentions either are improperly raised for the first time on appeal or lack merit.
CONNOLLY, J.P., IANNACCI, GENOVESI and LOVE, JJ., concur.