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
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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
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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
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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
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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
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