IN RE: METROPOLITAN PROPERTY & LIABILITY

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: METROPOLITAN PROPERTY & LIABILITY, Appellant, v. Frederick A. MENDELSOHN a/a/o Martin Massolena, Respondent.

Decided: June 29, 1998

Before BRACKEN, J.P., COPERTINO, McGINITY, LUCIANO, JJ. Serpe, Feinbloom, Andree and Kaufman, Huntington, N.Y. (Joseph M. Rosenthal of counsel), for appellant.

In a proceeding pursuant to CPLR 7511 to vacate the award of a master arbitrator, dated April 4, 1997, which vacated an award of an arbitrator dated January 20, 1997, the petitioner appeals from a judgment of the Supreme Court, Nassau County (DiNoto, J.), dated July 8, 1997, which dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the master arbitrator's award dated April 4, 1997, is vacated, and the arbitrator's award dated January 20, 1997, is reinstated.

The master arbitrator himself acknowledged that the original award was “entirely proper” based upon the record before the arbitrator.   Nonetheless, the master arbitrator vacated that award and directed a new arbitration, essentially in order to allow the respondent to present evidence that had been inadvertently omitted at the original arbitration.   The Supreme Court dismissed the proceeding to vacate the master arbitrator's award (CPLR 7511[b][1] ). We reverse.

The governing statutes and regulations (see, Insurance Law § 5106[c];  CPLR 7511[b];  11 NYCRR 65.18[a][1]-[6] ) do not authorize a master arbitrator to vacate the award of an arbitrator in order to permit a party to present new evidence.   The master arbitrator thus exceeded his enumerated powers, and his award was therefore subject to vacatur (see, CPLR 7511[b] [1] [iii];  Matter of Petrofsky [Allstate Ins. Co.], 54 N.Y.2d 207, 445 N.Y.S.2d 77, 429 N.E.2d 755;  Matter of Richardson v. Prudential Prop. & Cas. Ins. Co., 230 A.D.2d 861, 646 N.Y.S.2d 850;  see also, Matter of Central Gen. Hosp. v. Hanover Ins. Co., 49 N.Y.2d 950, 428 N.Y.S.2d 881, 406 N.E.2d 739;  Matter of Instituto De Resseguros Do Brasil v. First State Ins. Co., 221 A.D.2d 266, 634 N.Y.S.2d 79).

MEMORANDUM BY THE COURT.

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