| Matter of American Express Prop. Cas. Co. v Vinci |
| 2009 NY Slip Op 05328 [63 AD3d 1055] |
| June 23, 2009 |
| Appellate Division, Second Department |
| In the Matter of American Express Property Casualty Co.,Respondent, v Robert Vinci, Appellant. |
—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Korri Abrams Frampton and Martha S.Henley of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motoristclaim, Robert Vinci appeals (1) from a judgment of the Supreme Court, Westchester County(Bellantoni, J.), entered December 17, 2007, which, upon an order of the same court datedAugust 30, 2007, denying his motion to vacate an arbitration award and granting the petitioner'scross motion to confirm the arbitration award, confirmed the arbitration award (2), as limited byhis brief, from so much of an order of the same court dated May 6, 2008, as, upon reargument,adhered to the original determination, and (3) from an order of the same court dated July 1, 2008,which granted the petitioner's motion to quash a subpoena duces tecum.
Ordered that the judgment is affirmed; and it is further,
Ordered that the order dated May 6, 2008, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated July 1, 2008, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the petitioner.
"Since a claim by an insured against an insurance carrier under the uninsured motorists'endorsement is subject to compulsory arbitration, the arbitrator's award is subject to 'closerjudicial scrutiny' under CPLR 7511 (b) than it would receive had the arbitration been conductedpursuant to a voluntary agreement between the parties" (Matter of Mangano v United StatesFire Ins. Co., 55 AD3d 916, 917 [2008], quoting Matter of Motor Veh. Acc. Indem.Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). " 'To be upheld, an award in acompulsory arbitration proceeding must have evidentiary support and cannot be arbitrary andcapricious' " (Matter of Mangano v United States Fire Ins. Co., 55 AD3d at 917, quotingMatter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223[1996]; [*2]see Matter of Fireman's Fund Ins. Co. v AllstateIns. Co., 46 AD3d 560 [2007]).
Contrary to the appellant's contention, the arbitrator's award finds evidentiary support in therecord and is rationally based (see Matter of Mangano v United States Fire Ins. Co., 55AD3d 916 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v Arabov, 2 AD3d 531[2003]). In addition, even if the arbitrator failed to consider certain evidence, vacatur of theaward would not be warranted (see Montanez v New York City Hous. Auth., 52 AD3d338 [2008]). Accordingly, upon reargument, the Supreme Court properly adhered to its originaldetermination denying the appellant's motion to vacate the arbitration award, and granting therespondent's cross motion to confirm the award.
Further, the Supreme Court properly determined that the subpoena duces tecum served bythe appellant was facially defective because it neither contained nor was accompanied by anotice stating the "circumstances or reasons such disclosure is . . . required" (CPLR3101 [a] [4]; see Wolf v Wolf, 300 AD2d 473 [2002]; Lazzaro v County ofNassau, 240 AD2d 546 [1997]; Knitwork Prods. Corp. v Helfat, 234 AD2d 345[1996]). Moreover, the subpoena duces tecum was improperly issued merely for purposes ofdiscovery or to ascertain the possible existence of evidence after the Supreme Court had resolvedthe motions to vacate and confirm the arbitration award (see Matter of Terry D., 81NY2d 1042, 1044 [1993]; Garnot v LaDue, 45 AD3d 1080, 1083 [2007]; Matter ofBoard of Educ. of City of N.Y. v Hankins, 294 AD2d 360 [2002]). Accordingly, theSupreme Court properly granted the respondent's motion to quash the subpoena duces tecum.
The appellant's remaining contentions are not properly before this Court or are withoutmerit. Skelos, J.P., Santucci, Belen and Chambers, JJ., concur.