Matter of Progressive Cas. Ins. Co. v. Office of the Comptroller (NYC)

2024 NY Slip Op 31169(U)

• Court: New York Supreme Court, New York County
• Decided: April 4, 2024
• Status: Unpublished

Opinion

Matter of Progressive Cas. Ins. Co. v Office of the Comptroller (NYC) 2024 NY Slip Op 31169(U) April 4, 2024 Supreme Court, New York County Docket Number: Index No. 654336/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 654336/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/04/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 654336/2023 In the Matter of MOTION DATE 11/08/2023 PROGRESSIVE CASUALTY INSURANCE COMPANY, MOTION SEQ. NO. 001 Petitioner,

-v- AMENDED DECISION, ORDER, OFFICE OF THE COMPTROLLER (NYC) and THE CITY OF NEW YORK, AND JUDGMENT

Respondents. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT .

The court’s prior decision, order, and judgment dated April 2, 2024, is recalled and vacated, upon the court’s own motion, to address the petitioner’s request to confirm an additional arbitration award, as set forth in its petition, and the following decision, order, and judgment is substituted therefor:

Progressive Casualty Insurance Company (Progressive) petitions pursuant to CPLR

7510 to confirm two arbitration awards, both dated September 7, 2022, made by an arbitrator

acting under the auspices of Arbitration Forums, Inc. (AFI), and pursuant to CPLR 7514 to direct

the entry of judgment thereon. The respondents, Office of the Comptroller (NYC) (the

Comptroller), and the City of New York, do not oppose the petition. The petition is granted, the

awards rendered under AFI Docket Nos. I068-06355-22-00 and I068-06356-22-00 are

confirmed, and Progressive is entitled to enter a money judgment against the City of New York

in the principal sum of $32,210.69, plus statutory interest from September 7, 2022.

Progressive is the insurer of a motor vehicle owned and operated by Gregorio Perez

Ortega. The Comptroller is the self-insurer of a Ford utility truck owned by the New York City

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Department of Environmental Protection, which had been furnished to operator Gregory Cook.

On December 2, 2019, Perez Ortega was operating his vehicle northbound on Trantor Place in

Bronx, New York, near its intersection with Innis Street, immediately front of Cook’s vehicle,

when Cook’s vehicle struck Perez Ortega’s vehicle in the rear. At the time, Ashley Perez was a

passenger in Perez Ortega’s vehicle.

Perez Ortega made claim for the injuries that he sustained in the accident upon his

insurer, Progressive, which paid claims totaling $26,720.23, either to him or on his behalf.

Ashley Perez made claim for the injuries that she sustained in the accident upon Progressive,

which paid claims totaling $5,490.36, either to her or on her behalf.

Inasmuch as Cook’s vehicle was a “motor vehicle weighing more than six thousand five

hundred pounds unloaded” (Insurance Law § 5105[a]), Progressive was entitled to seek a

personal injury protection (PIP) “loss transfer” from the Comptroller to reimburse it for the

benefits that it had paid out to and on behalf of Perez Ortega and Perez. To obtain this loss

transfer, Progressive was required to establish that Cook, as the operator of the vehicle insured

by the Comptroller, was at fault in the happening of the accident. Insurance Law § 5105(b)

provides that, where an insurer seeks to recover first-party benefits/PIP loss transfer from the

“insurer of any other covered person” on the ground that the other covered person was at fault

in the happening of the accident, “[t]he sole remedy . . .shall be the submission of the

controversy to mandatory arbitration pursuant to procedures promulgated or approved by the

superintendent” of the New York State Department of Financial Services. Pursuant to those

regulations, AFI has been designated as the exclusive forum for resolution of no-fault related,

loss-transfer arbitration matters (see 11 NYCRR 65.10). Progressive thus demanded inter-

insurer arbitration with the Comptroller before AFI.

In the September 7, 2022 arbitration awards, an arbitrator acting under the auspices of

AFI, after an arbitration proceeding in which the respondents neither answered nor appeared,

found Perez Ortega’s description of the accident to be credible, found in favor of Progressive, 654336/2023 PROGRESSIVE CASUALTY INSURANCE COMPANY vs. OFFICE OF THE Page 2 of 4 COMPTROLLER (NYC) ET AL Motion No. 001

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and concluded that Cook was at 100% at fault in the happening of the subject accident because

he was negligent in failing to maintain safe distance behind Perez Ortega’s vehicle, and

because he was inattentive as he operated his vehicle. She thus determined that the

Comptroller was obligated to pay Progressive the sum of $26,720.23 with respect to Perez

Ortega’s claim and $5,490.36 with respect to Perez’s claims.

Pursuant to CPLR 7510, the court “shall confirm an [arbitration] award upon application

of a party made within one year after its delivery to him [or her] unless the award is vacated or

modified upon a ground specified in section 7511.” The grounds specified in CPLR 7511 are

exclusive (see Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 201 [1st

Dept 2009]) and it is a “well-established rule that an arbitrator’s rulings, unlike a trial court’s, are

largely unreviewable” (Matter of Falzone v New York Cent. Mut. Fire Ins. Co., 15 NY3d 530, 534

[2013]). The instant proceeding to confirm the arbitration award was timely commenced on

September 6, 2023 (see CPLR 304[a]). Progressive contends that the award was proper in all

respects and that no grounds exist for modification or vacatur. The court agrees, and concludes

that Progressive is entitled both to the confirmation of the awards and the entry of a money

judgment in the sum of $32,210.69, representing the sum of the awards of $26,720.23 and

$5,490.36. The money judgment must bear interest from the date of the arbitration awards, that

is, from September 7, 2022 (see CPLR 5002; Board of Educ. of Cent. School Dist. No. 1 of

Towns of Niagara, Wheatfield, Lewiston & Cambria v Niagara-Wheatfield Teachers Assn., 46

NY2d 553, 558 [1979]; Dermigny v Harper, 127 AD3d 685, 686 [2d Dept 2015]; Matter of Levin

& Glasser, P.C. v Kenmore Prop., LLC, 70 AD3d 443, 446 [1st Dept 2010]; Matter of Gruberg v

Cortell Group, Inc., 143 AD2d 39, 39 [1st Dept 1988]).

Accordingly, it is,

ADJUDGED that the petition is granted, without opposition, and the arbitration awards

rendered in the matters entitled Progressive Casualty Insurance Company v Office of the

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Comptroller (NYC), Arbitration Forums, Inc., Docket Numbers I068-06355-22-00 and I068-

06356-22-00, both dated September 7, 2022, be, and hereby are, confirmed; and it is further,

ORDERED that, within 30 days of the entry of this Order and Judgment, the petitioner

shall personally deliver a copy of this Order and Judgment with notice of entry to the New York

City Corporation Counsel, 100 Church Street, New York, New York 10007; and it is further,

ORDERED that, upon the petitioner’s submission of proof of service of a copy of this

Order and Judgment with notice of entry upon the New York City Corporation Counsel, the

Clerk of the court shall enter a money judgment in favor of Progressive Casualty Insurance

Company and against the City of New York in the principal sum of $32,210.69, with statutory

interest at 9% per annum from September 7, 2022.

This constitutes the Amended Decision, Order, and Judgment of the court.

4/4/2024 $SIG$ DATE JOHN J. KELLEY, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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