New York Central Mutual Fire Insurance v. Drasgow

Pine, J.P., and Lawton, J. (dissenting).

We respectfully dissent. We concur with the majority that Supreme Court properly determined that it could not disturb the arbitrator’s award on the ground that it was based upon an error of law. We differ only with the majority’s holding that “there is no rational basis for the arbitrator’s finding that it was impossible for respondent to provide notice to petitioner within the 90-day period.” Because the finding of the arbitrator was based upon the weighing of factual matters and the record supports that determination, the court is powerless to substitute its determination for that of the arbitrator (see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 83 [2003]; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]; Matter of Singleton [Fireman’s Fund Ins. Co.], 247 AD2d 868 [1998]). We would therefore re*1040verse the order, deny petitioner’s petition, grant respondent’s petition and confirm the arbitrator’s award. Present—Pine, J.P., Scudder, Kehoe, Martoche and Lawton, JJ.