IN RE: GLOBAL LIBERTY INSURANCE COMPANY OF NEW YORK (2019)

Order, Supreme Court, Bronx County (Donna Mills, J.), entered February 1, 2019, which granted respondents' motion to vacate, pursuant to stipulation, an order entered on default vacating an arbitration award, deny the petition to vacate the award, and grant statutory attorneys' fees, to the extent of dismissing the petition, unanimously modified, on the law, to remand for a determination of respondents' attorneys' fees pursuant to 11 NYCRR 65–4.10(j)(4), and otherwise affirmed, without costs.

 Petitioner failed to establish that respondents' assignor was injured in the course of his employment, and therefore that it properly denied his claim because workers' compensation benefits were available to him (see Westchester Med. Ctr. v. American Tr. Ins. Co., 60 A.D.3d 848, 849, 875 N.Y.S.2d 246 [2d Dept. 2009]).  Although the assignor was allegedly injured while driving a livery car, his license from the New York Taxi and Limousine Commission was issued that day.  Further, petitioner submitted no evidence that the assignor was on duty or carrying a paying passenger at the time of the incident (cf. Matter of Aminov v. New York Black Car Operators Injury Compensation Fund, 2 A.D.3d 1007, 1007–1008, 768 N.Y.S.2d 530 [3d Dept. 2003], lv denied 4 N.Y.3d 709, 797 N.Y.S.2d 816, 830 N.E.2d 1145 [2005]).

Supreme Court had the authority to award attorneys' fees in connection with a “court appeal from a master arbitration award and any further appeals” (11 NYCRR 65–4.10[j][4] ).  Because the court failed to address respondents' request for attorneys' fees, the matter is remanded for a determination of the amount of fees to which respondents are entitled (see Matter of GEICO Ins. Co. v. AAAMG Leasing Corp., 148 A.D.3d 703, 51 N.Y.S.3d 93 [2d Dept. 2017]), including fees for the instant appeal (see Matter of Country–Wide Ins. Co. v. Bay Needle Acupuncture, P.C., 167 A.D.3d 404, 405, 89 N.Y.S.3d 69 [1st Dept. 2018]).