| Matter of Kemper Ins. Co. v Westport Ins. Co. |
| 2004 NY Slip Op 06122 [9 AD3d 431] |
| July 19, 2004 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Kemper Insurance Company, Respondent, v Westport Insurance Company et al., Appellants, et al., Respondent. |
—[*1]In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, Westport Insurance Company and Mattei Companies appeal from an order of the Supreme Court, Queens County (Hart, J.), dated August 4, 2003, which granted the petition.
Ordered that the order is affirmed, with costs.
An arbitration award in a mandatory arbitration proceeding will be upheld if it is supported by the evidence and is not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). The Supreme Court correctly found that the arbitrator's determination that the petitioner waived its loss transfer claims was not supported by the evidence in the record (see Doherty v Barco Auto Leasing Co., 144 AD2d 424, 426 [1988]; Allstate Ins. Co. v Manfredi Motor Tr. Co., 159 AD2d 969 [1990]) and was arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., supra; Matter of State Ins. Fund [Country-Wide Ins. Co.], 276 AD2d 432 [2000]). Santucci, J.P., Schmidt, Townes and Rivera, JJ., concur.