Allstate Ins. Co. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51567(U))

Allstate Ins. Co. v Progressive Cas. Ins. Co.

2008 NY Slip Op 51567(U) [20 Misc 3d 139(A)]

Decided on July 10, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Allstate Insurance Company (JOSE RAMON MARTINEZ), Appellant,

against

Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered May 8, 2007, deemed from a judgment of the same court entered July 11, 2007 (see CPLR 5520 [c]). The judgment, entered pursuant to the May 8, 2007 order granting respondent's motion to vacate its default in opposing the underlying petition to vacate an arbitrator's award and, upon such vacatur, denying the petition to vacate the award and confirming the award, awarded respondent the principal sum of $3,250.

Following an arbitration proceeding conducted before Arbitration Forums, Inc. (AFI), petitioner Allstate Insurance Company (Allstate) sought to vacate the arbitrator's award based upon the arbitrator's denial of Allstate's request for an adjournment of the proceedings due to pending litigation. Upon the failure of respondent Progressive Casualty Insurance Co. (Progressive) to oppose the petition, the petition was granted, the award was vacated, and the matter was remanded to AFI for proceedings before a different arbitrator.

Shortly thereafter, Progressive moved to vacate its default in opposing Allstate's petition and, upon such vacatur, to deny the petition and to confirm the arbitrator's award. Allstate opposed the motion. The court below granted Progressive's motion, and a judgment in favor of [*2]Progressive in the principal sum of $3,250 was subsequently entered. On appeal, the sole issue raised by Allstate is that Progressive's motion to vacate its default should not have been granted as the affidavit of Progressive's claims representative was insufficient to establish a reasonable excuse for the default.

Upon a review of the record, we are in agreement with the court below that the affidavit of Progressive's claims representative was sufficient to demonstrate that the delay in forwarding the petition to outside counsel was not willful or deliberate, but rather was due to an in-house error in forwarding the papers to the correct department
(see Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]; Triangle Transp. Inc. v Markel Ins. Co.,18 AD3d 229 [2005]). Accordingly the order is affirmed.