Decided: November 2, 2012

ATTORNEYS

Attorneys for Petitioner: Martin & Colin, P.C., White Plains, NY.

Attorneys for Respondent: Saretsky Katz et al., New York, NY.

The following papers numbered 1 to 5 were read on this motion:

PaperNumber

Notice of Petition, Petition and Exhibits1

Memorandum of Law2

Affirmation and Exhibits in Opposition¹3

Memorandum of Law in Opposition4

Reply Memorandum of Law5

DECISION AND ORDER

*1

Petitioner, a Rockland County resident who was injured while riding on a Rockland County “T.R.I.P.S.” bus, brings this petition seeking to overturn an arbitration decision rendered

*2

against her on April 17, 2012 by a JAMS arbitrator, Allen Hurkin-Torres. The parties had a full eight hours of hearings, including testimony from petitioner and her son, two bus drivers from respondent and experts from both sides.

In his decision, the arbitrator held that “a lengthy decision here is unwarranted since the facts and general principles of law governing liability are largely uncontroverted.” The award goes on to recite the undisputed facts² — that on the day of the accident, plaintiff had a cane that she used as a result of a previous injury; that she sat in the front of the bus; and that when the bus rounded a corner, she was thrown from her seat to the floor, where she was again seriously injured.

The decision then analyzes the law concerning injuries suffered on a bus, stating that “the movement must be unnecessarily sudden, unusual or violent” — in other words, liability only attaches when a bus driver was negligent, as opposed to the “usual movements of a bus, which include bouncing.…” The arbitrator found that he need not decide whether the driver was negligent (“there is no need to make a determination as to whether the movement of the bus in this case was sufficiently sudden, unusual or violent”), however, because

*3

petitioner was not wearing her seatbelt at the time that the bus rounded that corner. The arbitrator found that “under no scenario would petitioner have fallen to the floor had she been wearing her seatbelt. This being so, it is uncontroverted that she would have suffered no injury. Accordingly, petitioner is barred from recovering irrespective of whether respondent was negligent.”

Analysis

The basis for the petition is that petitioner believes that the arbitrator “acted with manifest disregard of the law when he did not decide the facts of the case.” In doing so, petitioner argues, he “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made,” as set forth in CPLR §7511(b)(1)(iii). She further claims that the award “violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” because the arbitrator “did not find any facts” (emphasis omitted), and that he “concluded that he did not have to determine what the facts were in this case because a high-low agreement was in place.”

It is well-settled that “In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role. Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration

*4

award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice.” In the Matter of New York State Correctional Officers and Police Benev. Ass’n. Inc. v. State of NY, 94 N.Y.2d 321, 704 N.Y.S.2d 910(1999). See also In the Matter of the Arbitration between Albany Police Supervisor’s Ass’n v. City of Albany, 95 A.D.3d 1491, 944 N.Y.S.2d 675 (3d Dept. 2012).

Since the Court must give deference to the arbitrator’s decision, and “cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts,” Shenendehowa Cent. School Dist. Bd. of Educ. v. Civil Service Employees Ass’n, Inc., 90 A.D.3d 1114, 934 N.Y.S.2d 540 (3d Dept. 2011), the Court may find that an “award is irrational only if there is no proof whatever to justify the award.” Susan D. Settenbrino, P.C. v. Barroga-Hayes, 89 A.D.3d 1094, 933 N.Y.S.2d 409 (2d Dept. 2011). As the Second Department held in Susan D. Settebrino, P.C., “An arbitration award must be upheld when the arbitrator offers even a barely colorable justification for the outcome reached.”

Here, the Court finds that while the award did offer a “barely colorable justification for the outcome reached,” the

*5

award is fatally flawed because the arbitrator failed to determine the percentage of culpability on petitioner’s part for her failure to wear her seatbelt, and on the driver’s part — if any. The arbitrator concluded that it did not matter whether the bus driver had rounded the corner too fast, or otherwise had driven improperly, because had petitioner been wearing her seatbelt in this accident, she would not have fallen to the floor.³ In other words, what the arbitrator appears to have concluded is that petitioner’s failure to wear her seatbelt was the sole cause of the accident. Putting aside the unlikelihood that this was actually the case, the Court finds that it was incumbent upon the arbitrator to determine the percentage of liability attaching to each party. The Court should not have to assume or guess at the arbitrator’s assessment of the parties’ liability. As the First Department held in Hamilton Partners Limited v. Singer, 290 A.D.2d 316, 736 N.Y.S.2d 219 (1st Dept. 2002), a court has authority

to remand the matter to the arbitration panel when the panel’s award does not dispose of a particular issue raised by the parties or indicate the panel’s intention with respect to it, or when the award is ambiguous and not sufficiently explicit, since a court may not impose its own interpretation of the award. Here, the award is not only ambiguous as to the intent of the panel, but also fails to address

*6

and dispose of the issues raised by the parties or to make any specific findings of fact or credibility. Given the diametrically opposed positions of the parties, the award, which apparently denied both sets of claims on the merits, cannot be harmonized or interpreted without speculation as to the panel’s intent.

This is exactly what happened here. The Court cannot speculate as to the arbitrator’s intent. Accordingly, the Court grants the petition, and sets aside the arbitrator’s award. The case shall be re-heard by a different arbitrator — unless the parties wish to attempt to settle it between themselves.

The foregoing constitutes the decision and order of the Court.

1. This Court’s Part Rules — and, indeed, the Rules of every Court in this County — require the submission of Working Copies in an e-filed case. The Court did not receive Working Copies from respondent. Counsel is warned that the Court will not overlook this omission again.

2. Petitioner argues repeatedly that there were many disputed facts. A review of the papers shows that this is true. However, the few facts set forth in the award are all entirely undisputed.

3. The Court does not agree with petitioner’s argument on p. 33 of its moving Memorandum of Law that the arbitrator’s conclusion was so broad as to encompass any accident that might have happened, including the driver driving off a cliff. Plainly, a seatbelt would not prevent injuries in that scenario.