FILED: NEW YORK COUNTY CLERK 06/02/ :33 AM INDEX NO /2014 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 06/02/2017

Transcription

1 Exhibit C

2 SUPREME COURT t~f THE STATE OF NEVI YC~~~K. CC3[JNTY OF NEW YQRK ~~r~~~w~w ~w rr~~r~~~~r~~~~~~r~~~~~w~ rr.~~~~~rv.~~w~~~.~w~~~~rr.~. ~...~~~...~~.~. w..~~...0 x ss New York City Transit Authority, INDEX NU.: 4SOld5/14 - against -- Petitioner, REPLY AFFI1tMATI()N State Farm Mutual Automobile Insurance Company, Respondent. sa Agnes Neiger, an attorney duly admitted in the Courts of the state of New York affzrrns to the truth of the following: 1. I am associated with the firm of Janes Jones LLC, attorr~.eys for petitioner New York City Transit Authority. As such, i am fully familiar with the facts and circumstances of this matter from the information furnished by my client pertinent to this matter and from file review. 2. This affirmation is submitted in reply to Resondent's affirmation in opposition, and in further support of Petitioner's petition to vacate the underlying arbitration award. STANDARD OF REVIEW 3. As set forth in the within Petition, judicial review of arbitration awards arising from compulsory arbitration include review of whether the award has a rational basis in the relevant law ar~d evidence before the arbitrator. As such, an award in compulsory arbitration must be vacated if it is not supported by both the evidence and a rational interpretation of the relevant law. See, Mt. St. MarX s.hospital v. Catherwood,

3 26 N.Y.2d 493 (1970 ;Matter of Sauter v. Board of Educ. of E. Meadow Union Free Sch. I3ist., 1 ~ 1 A.D.3d 1X26 (2nd Dept. 2012}; Matter of Gon~oxa v. New 'Y"ar~ City Deft. of Educ., 98 A.D.3d 8$8, (1st Dept. 2012). 4. Such broad judicial review of compulsory arbitration awards as compared to the narrow review authorized by CPLR Art. 75 is necessary to protect the due process rights of parties compelled to participate in arbitration, See, Mt. St. MarX's Hospital v Catherwood, supra; lv.catter of Gon~ora v. New York CitX Dept. of Educ., supra. 5. Respondent's opposition does not meaningfully challenge the applicability of the above-cited standard. Rather, Respondent questions this Court's authority to review the award based on Arbitration Forums, Inc. rules. Specifically, Respondent cites Arbitration Forums Rule S(i) (11 1~YCRR ~ [d~,), which states that an arb1trator's decisions are final. However, Respondent's reliance on said rule is misplaced. 6. When read in full, it is clear that the above-referenced rule pertains to Arbitration Forums, Int.'s authority to vacate, modify, or otherwise alter an arbitrator's decision. This ~is evident from the fact that the rule discusses the limited circumstances under which the arbitrator or Arbitration Forums has the authority to correct clerical errors or order rehearing of a dispute. Nothing in the rule specifically precludes judicial review of an award. S`ee, 11 NYCRR ~5~4. ~ 1 ~d)(5}(i). Indeed, any regulation to that effect would unconstitutionally deprive parties to the litigation of their right to due process. See, Mt. St. Ma~-,~ Hospital v. Catherwood, supra; Matter of Gongora r v. r. ~ New ~~ York City Dept. of Educ., supra. 7. In fact, in addressing the standard of review applicable to compulsory arbitration awards, the Court of Appeals specifically stated that a statute holding that an

4 award was final did not preclude judicial review of the award. Mt., St. Mary' s Hospital v. Catherwood, supra. 8. As such, this Court has the authority to review the underlying award, and in doing so, must vacate the award as it is not supported by adequate evidence or other basis in reason, and is incorrect as a matter of law. THE ARBITRATOR'S AWARD IN THE INSTANT MATTER IS ARBITRARY AND CAPRICIOUS AS IT YS UNSUPPORTED BY SUFFICIENT EVIDENCE IN TIDE RECURD AND YS INCUI7;RECT AS A MATTER. 4F LAW 9. Contrary to Respondent's contention, there vvas no reasonable basis for the arbitrator's decision finding Petitioner's insured 75% liable for the accident at issue. 10. Respondent's arguments that "the arbitrator was presented with conflicting witness statements and rationally accepted the respondent's allegation" and that Petitioner "merely seeks to favor on fact witness over another" misrepresents the basis for the arbitrator's award and the nature of Petitioner's abjection to the award. 11. In the section of the decision entitled "~U'hat evidence caused you to render this decision and why?", Arbitrator ~-Iebert sets forth the following explanation for his finding: NYCTA states they were in the intersection aid were struck in the rear corner. The impact point indicates that NYCTA was nearly through the intersection when the loss occurred. In addition, there is a statement from a passenger on the bus stating that NYCTA had the green light when they entered the intersection. Impact to Stiate Farm was the from corner. Per the evidence provided by State Farm, NYCTA made a settlement offer, indicating they accepted partial liability. 12, The arbitrator's decision does not even reference the statement of Respondent's insured. As such, the award car~nat be interpreted as relying on any such

5 statement andlor giving greater weight to any such statement than to those of Petitioner's insured and the non-party witness referenced b~ the arbitrator as the basis for his decision. In fact, the only evidence submitted by the Respondent that is referenced by the arbitrator as a basis for his decision is State Farm's alleged evidence that the Transit Authority made a settlement offer, 13. Based on the evidence that was credited by the arbitrator, namely the positioni~.g of the vehicles, points of impact, and statement of a non-party witness indicating that Petitioner had a green light upon entering the intersection, the arbitrator's decision finding Petitioner 75% liable has no rational basis. Thus, to the extent the award was based on such evidence, it is not supported by the requisite adequate evidence. See, 1Vlotor Vehicle Acc. Indemnification Corp. v. Aetna Cas.& Sur. Co., 89 NY2d 214, 652 ~I ~MI~ 1~ YI h N.Y.S.Zd 584 (1996); Matter of Petrofsk~ v Allstate Ins. Ca., 54 N.Y.2d 207 (1981); Mt.,. St. Ma 's Hospital v. Catherwood, supra; Matter of Gon~ora v. New York ~itv Dept. of Educ., supra. 14. Furthermore, to the extent that the award relies on the alleged settlement offer made by Petitioner as an admission of liability, is incorrect as a matter of laver. See, Matter of Colonial Penn Ins. Co, v. Salti, 84 A.D.2d 35a (Ist Dept. 1982}; Universal Carloadin~& Distribution Co., Inc. v. Penn Central Trans. Co., 101 A.D.2d 61 (1St Dept. 1984); Palen v. Ford Motor Co., 138 Misc.2d 76 (Sup. Ct., Duchess 1988); Miller v. State of New York, 91 Misc.2d 1028 (Ct. of Claims 1977); Miller v. Sanchez, b Misc.3d 479 (Civ, Ct,, Kings 20U4}. 15. Respondent's argument that tie arbitrator's reliance on Petitioner's alleged settlement offer was proper because formal rules of evidence were not applicable to the

6 underlying arbitration is without merit. The issue in the instant action is not a question of the admissibility of the evidence presented, but rather whether, as a matter of law, the tender of a settlement offer constitutes an admission of liability. As indicated in the abovecited case law, it is well-settled that a settlement offer does not constitute an admission as to liability or the value of a claim. 1 b. Furthermore, the law holding that settlement offers do not constitute admissions of fact is rooted in a strong public policy i~ favor of encouraging settlement of disputes. See, Matter of Colonial Penn Ins. Co. v. Salti, supra. Thus, acceptance of a settlement offer as evidence of liability violates a strong public policy. See, Matter of Colonial Penn Ins. Co. v. Salti, supra; Universal Carloadin~ &Distribution Co., Inc. v. Penn Central Trans. Co., supra; Palen v. Ford Motor Co., supra; Mi11er v. State of Nev~v York, supra; Miller v. Sanchez, supra. 17. As such, in addition to being subject to vacatur based on the fact that it is arbitrary and capricious, the award in question must be vacated based on the fact that it violates public policy. Montanez v. Nevv York City Hous. Auth., 52 A,d3d 33$, 86~ N.Y. S.2d 61 (1st Dept. 2008). 18, Based an all of the foregoing, the within petition must be granted and the underlying arbitration award vacated in its entirety.

7 ~VHEREFC}RE it is respectfully requested that an order be made herein vacating the award, together with such other and further relief as this Court may deem just and proper. Dated: New York, New York April 24, 2014 Agnes Neiger, Esq. Q Jones Jones LLC Attorneys for New York City Transit Authority 5 Hanover Square, Suite 1001 Nevv York, NY Ph, (212) File No. 1-$707 To: Serge Andree &Kaufman 149 Main Street Huntington, r1y 11743

8 SUPREME COURT l~f THE STATE QF NEW YORK COUNTY OF NE'W YfJRK ~~~~r rrrr~~o.~+~.~+~wr ~~~~~~~~~~wwr r~.~w~~~~~~~r ~wr~rrr ~~~~~~~~~~~~~~rr...~~.~..:~...~~ New York pity Transit Authority, INDEX NO.: /14 - against Petitioner, CERTIFICATItJN State Farm Mutual Automobile Insurance Company, Respondent. ~~~~.~~w.~w~~w~~~~~~~~~~~~~~rrw~~r~+~~~~~~~~~~~~r~.~~~~w~~~~~~~~~~~~~~~~rrrrw~y sa Pursuant t~ 22 NYCRR 13 U-1.1 ~a, I, AGNES NEIGER, an attorney admitted to practice law in the Courts of the State of New York do hereby certify, to the best of my knowledge and belief, that the following attached papers: REPLY AFFIRMATIC)N are in accordance with the rules pertaining to this certification. Dated: New York, New York April 24, 2014 Agnes Neiger, Esq. ~ Jones Jones LLC Attorneys for Nev~v York City Transit Authorit}r 5 Hanover Square, Suite 1001 New York, NY 1 t}oa4 Ph. (212) File No To Serge Andree &Kaufman 149 Main Street Huntington, NY 1 ~ 7~3

9 SUPREME C CJURT OF THE S TATS QF NEW YORK CO~JNT~Y af NEVI YORK...r...~~~.~~~w ~~~rr..w.~w~~~rwrr~~~~~~~~ww~~~~r ~+.w~~~~~wr~.~~w~~~`r r~.~~~..~rr.r~~~w~x ~a New York City Transit Authority, INDEX NO.: /14 against -- Petitioner, AFFIDA'VTT OF SERVICE State Farm 1'Vlutual Automobile Insurance Company, Respondent. ~~r~rrr~~.~~~~~~~~~.r.~~~~~~~~...rr..~~~~~rr~w~~~~~~~..~w~~~~r ~r ww w~~~r~r rw.~~~~~w~rr~ State of Nevv York County of New York SS: David Jolley, being duly sworn, deposes and says, that deponent is not a party of the action and is over 18 years of age. ~... That on the ~~ da Y ~of ~` ~ 20 ~ 4, de ponent served the within REPLY A~FIl~~'VIATIUI~ and CERTI~CATICJN, upon the parties named below via by depositing a true copy of the same enclosed in a postpaid properly addressed wrapper in an official depository under tie exclusive care and custody of the United States Post Office Department within the State of Nevv York, and directed to the said parties at the address indicated below, such address being the address designated for that purpose. To: Serge Andree &Kaufman 1491VIain Street Huntington,l~TY Sworn to before me this ~,~~a f ~, 20~~ _...~..rs-_.~ i./ ~ Notary Pu lic AGNES NEIGER Notary Public, State 4fi New York N o. D2 P~ EC Qualified In Kinds Coun#y Commission Expires 03/24/ ~~

10 Index No / 14 RJI No. Hon. SUPREME CUURT OF THE CITY Q~' NEW YORK COUNTY' QF NEW YORK New York City Transit Authority -against State Farm Mutual Automobile Insurance Company Petitioner, Respondent. To NOTICE C)~ PETITION, PETITIQN, RJI, AND CERTI~'ICATIC~I~I LAW OFFICES OF 10NES JONES L,I.,C Attorneys for New York City Transit Authority C)ffice and Post O~~ce Address, Telephone 5 HANovER SQuAxE, SuYT~ 10~ 1 NEw Yom, NY 10004,.._. TEL: (212._ 77b-1808 ~ ~~ e~a ~ A Signature {Rule 130- i,1-a} Attorneys) for Service of a copy of the within Print name beneath ishereby admitted. Dated, Attorneys) for Please take notice CJ NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on D NOTICE 4F SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HQN. one of the judges of the within named court, at on At 1'Vi Dated, Youars, etc. LAW OFFICES OF To ~ JoN~s JoNEs I~LC Attorneys for New fork City Transit ~4uthorily Attorneys) for Office and Post CJffice Address 5 HANQV~a SQUARE, SU~~ 1001 NEw YORK, NY 10004