Opinion

Matter of New York Black Car Operators' Injury Compensation Fund, Inc. v. City of New York

  • 2024 NY Slip Op 33233(U)
Court
New York Supreme Court, New York County
Filed
Sep 16, 2024
Status
Unpublished
Author
John J. Kelley
Cited by
0 cases
Authority
More cited than 30.6%

The opinion

Matter of New York Black Car Operators' Injury

Compensation Fund, Inc. v City of New York

2024 NY Slip Op 33233(U)

September 16, 2024

Supreme Court, New York County

Docket Number: Index No. 452937/2023

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. 452937/2023

NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/16/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. JOHN J. KELLEY PART 56M

Justice

---------------------------------------------------------------------------------X INDEX NO. 452937/2023

In the Matter of

MOTION DATE 07/12/2024

NEW YORK BLACK CAR OPERATORS' INJURY

COMPENSATION FUND, INC., also known as NEW YORK MOTION SEQ. NO. 001

BLACK CAR FUND, as subrogee of HASSANUL BANNA,

Petitioner,

-v- DECISION, ORDER AND

JUDGMENT

CITY OF NEW YORK,

Respondent.

---------------------------------------------------------------------------------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

were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT .

New York Black Car Operators’ Injury Compensation Fund, Inc. (NYBCOICF), also

known as New York Black Car Fund, petitions pursuant to CPLR 7510 to confirm an arbitration

award dated June 27, 2023, 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

respondent, City of New York, does not oppose the petition. The petition is granted, the award

rendered under AFI Docket No. I2301E81B90-C1-D1 is confirmed, and NYBCOICF is entitled to

enter a money judgment against the City in the principal sum of $18,713.03, plus statutory

interest on that sum from June 27, 2023.

NYBCOICF was the insurer of Honda taxicab owned by Hassanul Banna, and operated

by Banna on behalf of a ride-share company that is a member of NYBCOICF. The City is the

self-insurer of a 2014 Chevrolet sedan that it had designated for use by the New York City

Police Department (NYPD). On March 20, 2021, at 7:45 p.m., NYPD Police Officer Jarren G.

452937/2023 IN THE MATTER OF THE APPLICATION OF NEW YORK BLACK CAR Page 1 of 6

OPERATORS' INJURY COMPENSATION FUND INC. A/K/A NEW YORK BLACK CAR FUND AS

SUBROGEE OF HASSANUL BANNA vs. CITY OF NEW YORK

Motion No. 001

1 of 6

[* 1]

INDEX NO. 452937/2023

NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/16/2024

Smalls was operating the NYPD vehicle eastbound “against [a] traffic device” on East 194th

Street in the Bronx, and approached that street’s intersection with Bainbridge Avenue, with his

emergency lights activated, in an attempt to make a traffic stop of another vehicle. Banna was

operating his vehicle northbound on Bainbridge Avenue, when his vehicle was struck by the

NYPD vehicle in the intersection of East 194th Street and Bainbridge Avenue.

Banna, who alleged that he was injured in the collision, thereafter made a claim upon his

insurer, NYBCOICF, for Workers’ Compensation benefits in lieu of first-party no-fault benefits,

including claims for medical expenses and lost wages (see A.I. Transp. v New York State Ins.

Fund, 301 AD2d 380, 380 [1st Dept 2003]; Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268

[1st Dept 1991]; Insurance Law §§ 5102[a], [b]; 5103 [a]; Workers' Compensation Law § 2[3]).

As relevant here, NYBCOICF paid claims to Banna or on Banna’s behalf for continuing losses

that he sustained, subsequent to an initial arbitration award on the issue of liability and the

apportionment of fault, in the sums of $39,065.06 in medical expenses, and $7,716.82 in lost

wages, for a total of $46,781.88.

Inasmuch as the vehicle that NYBCOICF had insured was a “motor vehicle used

principally for the transportation of persons or property for hire” and allegedly was a “motor

vehicle weighing more than six thousand five hundred pounds unloaded” (Insurance Law §

5105[a]), NYBCOICF was entitled to seek a personal injury protection (PIP) or Workers’

Compensation “loss transfer” from the City to reimburse it for the benefits that it had paid out to

Banna or on his behalf (see A.I. Transp. v New York State Ins. Fund, 301 AD2d at 380). To

obtain this loss transfer, NYBCOICF was required to establish that Smalls, as the operator of

the NYPD vehicle, had been completely or partially at fault in the happening of the accident.

Insurance Law § 5105(b) provides that, where an insurer seeks to recover first-party

benefits/PIP or Workers’ Compensation 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

452937/2023 IN THE MATTER OF THE APPLICATION OF NEW YORK BLACK CAR Page 2 of 6

OPERATORS' INJURY COMPENSATION FUND INC. A/K/A NEW YORK BLACK CAR FUND AS

SUBROGEE OF HASSANUL BANNA vs. CITY OF NEW YORK

Motion No. 001

2 of 6

[* 2]

INDEX NO. 452937/2023

NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/16/2024

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 arbitration matters (see 11

NYCRR 65-4.11[b][1]).

After a hearing, the arbitrator in a prior AFI arbitration proceeding between NYBCOICF

and the City found, under Docket No. I068-01167-22-00, that the dispute qualified for PIP loss-

transfer arbitration, and that Smalls had been 40% at fault in the happening of the accident. On

April 21, 2023, NYBCOICF demanded inter-insurer arbitration with the City before AFI with

respect to Banna’s subsequent $39,065.06 in medical expenses, and $7,716.82 in lost wages,

and thus filed a new PIP loss-transfer arbitration claim with AFI for continuing losses. The

arbitrator, concluding that the doctrine of res judicata obligated her to apply the 40%

apportionment of fault to Smalls, found that the amounts of both the claim for medical expenses

and that for lost wages that NYBCOICF had paid Banna, and which had been sought in the

arbitration, had been proven. Hence, the arbitrator concluded that City was obligated to pay

NYBCOICF the total sum of $18,713.03, or 40% of $46,781.88, in first-party benefits for

Banna’s basic economic loss. On November 8, 2023, NYBCOICF commenced this proceeding

to confirm the award.

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.” Thus, the award may only be vacated if the

court finds that the rights of a party were prejudiced by:

“(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an

arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or

so imperfectly executed it that a final and definite award upon the subject matter

submitted was not made; or (iv) failure to follow the procedure of this article,

452937/2023 IN THE MATTER OF THE APPLICATION OF NEW YORK BLACK CAR Page 3 of 6

OPERATORS' INJURY COMPENSATION FUND INC. A/K/A NEW YORK BLACK CAR FUND AS

SUBROGEE OF HASSANUL BANNA vs. CITY OF NEW YORK

Motion No. 001

3 of 6

[* 3]

INDEX NO. 452937/2023

NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/16/2024

unless the party applying to vacate the award continued with the arbitration with

notice of the defect and without objection”

(CPLR 7511[b][1]). The grounds specified in CPLR 7511 for vacatur of an arbitration award are

exclusive (see Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 1, 8 [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]). Nonetheless, where the award is one, such as the one here, that is rendered after

compulsory arbitration, i.e., an arbitration mandated by statute, the court must give “closer

judicial scrutiny of the arbitrator’s determination under CPLR 7511(b)” than would be warranted

in reviewing an award made after a consensual arbitration (Matter of Motor Veh. Acc. Indem.

Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v

American Bankers Ins. Co. of Fla., 132 AD3d 40, 46 [2d Dept 2015] [with respect to

determinations of law, the applicable standard in mandatory no-fault arbitrations is whether any

reasonable hypothesis can be found to support the questioned interpretation]; Matter of Lackow

v Department of Educ. (or "Board") of City of N.Y, 51 AD3d 563, 567 [1st Dept 2008]; Matter of

Curley v State Farm Ins. Co., 269 AD2d 240, 242 [1st Dept 2000]; Matter of Travelers Ins. Co.

v Job, 239 AD2d 289, 291 [1st Dept 1997]). “To be upheld, an award in a compulsory

arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious”

(Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223 [citations

omitted]; see Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d

251, 261 [2014]; Matter of Travelers Ins. Co. v Job, 239 AD2d at 291).

The instant proceeding to confirm the arbitration award was timely commenced on

November 8, 2023 (see CPLR 304[a]). NYBCOICF contends that the award was proper in all

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

arbitrator that the doctrine of res judicata is applicable to arbitration awards and proceedings,

including those rendered in disputes over no-fault benefits, and will bar relitigation of the same

452937/2023 IN THE MATTER OF THE APPLICATION OF NEW YORK BLACK CAR Page 4 of 6

OPERATORS' INJURY COMPENSATION FUND INC. A/K/A NEW YORK BLACK CAR FUND AS

SUBROGEE OF HASSANUL BANNA vs. CITY OF NEW YORK

Motion No. 001

4 of 6

[* 4]

INDEX NO. 452937/2023

NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/16/2024

claim or issue (see Matter of Motor Veh. Acc. Indemn. Corp. v Travelers Ins. Co., 246 AD2d

420, 421 [1st Dept 1998] [“res judicata will bar a second arbitration proceeding between the

same parties on the same issues”]; cf. Matter of Ranni [Ross], 58 NY2d 715, 717 [1982] [final

arbitration award bars relitigation of same issue in court]; Matter of American Ins. Co.

[Messinger–Aetna Cas. & Sur. Co.], 43 NY2d 184, 189-190 [1977] [same]; Monroe v Providence

Washington Ins. Co., 126 AD2d 929 [3d Dept 1987] [same]). Hence, the arbitrator appropriately

applied the prior arbitrator’s apportionment of fault to the claims to recover medical expenses

and lost wages.

The court also agrees with NYBCOICF, and concludes that the amount of the award

was rational and not arbitrary and capricious. Hence, the court further concludes that

NYBCOICF is entitled both to the confirmation of the award and to the entry of a money

judgment in the principal sum of $18,713.03. The money judgment must bear interest from the

date of the arbitration award, that is, from June 27, 2023 (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 award

rendered in the arbitration proceeding entitled Matter of New York Black Car Operators’ Injury

Compensation Fund, Inc., also known as New York Black Car Fund v City of New York,

Arbitration Forums, Inc., Docket No. I2301E81B90-C1-D1, dated June 27, 2023, be, and hereby

is, confirmed; and it is further,

ORDERED that the Clerk of the court shall enter a money judgment in favor of Black Car

Operators’ Injury Compensation Fund, Inc., also known as New York Black Car Fund, and

452937/2023 IN THE MATTER OF THE APPLICATION OF NEW YORK BLACK CAR Page 5 of 6

OPERATORS' INJURY COMPENSATION FUND INC. A/K/A NEW YORK BLACK CAR FUND AS

SUBROGEE OF HASSANUL BANNA vs. CITY OF NEW YORK

Motion No. 001

5 of 6

[* 5]

INDEX NO. 452937/2023

NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/16/2024

against the City of New York, in the principal sum of $18,713.03, plus statutory interest at 9%

per annum from June 27, 2023.

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

9/16/2024 $SIG$

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

452937/2023 IN THE MATTER OF THE APPLICATION OF NEW YORK BLACK CAR Page 6 of 6

OPERATORS' INJURY COMPENSATION FUND INC. A/K/A NEW YORK BLACK CAR FUND AS

SUBROGEE OF HASSANUL BANNA vs. CITY OF NEW YORK

Motion No. 001

6 of 6

[* 6]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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