The petitioner-respondent moves for an order, pursuant to CPLR §7511, vacating and setting aside an arbitration award issued on October 9, 2006, upon the grounds that arbitration forums did not have jurisdiction over the matter, and that the arbitrators exceeded their power. The respondent-petitioner cross-moves for an order confirming the award of the arbitrators and directing that judgment be entered thereon, and denying petitioner-respondent's petition to vacate the arbitration award. The petitioner-respondent submits a reply affidavit and opposition to the cross-motion. The respondent-petitioner submits a reply affirmation.

The respondent-petitioner requested and received an arbitration hearing for reimbursement of personal injury protection (PIP) benefits, loss transfer payments made on behalf of the respondent-petitioner. An insurer's right to recovery exists only if at least one of the motor vehicles involved is a motor vehicle weighing more than six thousand five hundred, (6,500), pounds unloaded, or is a motor vehicle used principally for the transportation of persons or property for hire. (New York Insurance Law §5105).

The petitioner-respondent argues that the petitioner-respondent's vehicle, a commercial van, did not meet the required weight of six thousand five hundred (6,500) pounds, and therefore does not qualify as a vehicle for the purposes of loss transfer. The petitioner-respondent submits that the arbitrators exceeded their power when they considered the proof submitted by the respondent-petitioner, the expanded registration record for the vehicle in question which listed its weight as 6,900 pounds, over the petition-respondent's proof, the N.A.D.A. listing, officially known as the "Blue Book" listing, which provided that the weight for the subject vehicle, [*2]generally, is five thousand four hundred eighty-four (5,484) pounds.

Notably, the plaintiff's proof provides the weight of the "actual" vehicle involved in the accident, as the VIN number is specifically identified, rather than a generic listing of the type of vehicle involved in the accident. In any event, the petitioner-respondent, who fully participated in the hearing by appearing and submitting affirmative defenses, has not demonstrated that the arbitrator's decision was "irrational, capricious and arbitrary" simply because the arbitrators gave more weight to the respondent-petitioner's proof than that of the petitioner-respondent.

It is well settled that the "courts are reluctant to disturb the decisions of arbitrators lest the value of this method of resolving controversies be undermined." (Goldfinger v. Lisker, 68 NY2d 225). CPLR §7511(b) sets forth the four narrow grounds upon which an arbitration award may be vacated. The petitioner raises the following ground, that the arbitrators, in making their decision, exceeded their power, and therefore the evidence does not support the arbitrator's award.

An arbitrator need not apply the rules of evidence and is not bound by principles of substantive law. (Silverman v. Benmor Coats, Inc., 61 NY2d 299). "He may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be" (Id). An arbitrator's award will not be set aside based on an error of law or fact. (Sprinzen v. Nomberg, 46 NY2d 623). Even if the arbitrator purports to adhere to the substantive law and then misapplies it, the award will not be vacated. (Schine Enterprises, Inc. v. Real Estate Portfolio of New York, Inc., 26 NY2d 799).

The scope of review is enhanced somewhat in cases of compulsory arbitration. "[A]n award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious." (MVAIC v. Aetna, 89 NY2d 214).

Here, the arbitration hearing was mandatory, and therefore, the judicial review under Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record, must also be rational, and satisfy the arbitrary and capricious standards of CPLR Article 78. (Motor Vehicle Manufacturer's Ass'n of the United States, Inc. v. State of New York, 75 NY2d 175).

Upon the foregoing papers, the award was not arbitrary and capricious, was in accord with due process, and was supported with adequate evidence in the record. Therefore, the petition to vacate the award is denied.

The respondent's request for an order confirming the award is granted.

The respondent is directed to Settle Judgment on Notice.

E N T E R : [*3]

________________________________

J.S.C.

Dated: February 16, 2007

cc: Curtis, Vasile, Devine & McElhenny, LLP

Geico

Arbitration Forums, Inc.