State Farm Mutual Automobile Insurance v. Fireman's Fund Insurance

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitioner appeals from so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated May 29, 1985, as modified the amount of the award to $3,450.

Order affirmed insofar as appealed from, with costs.

Where the award rendered by an arbitrator exceeds allowable insurance limits, the insurer’s remedy is to move to modify the award (see, Matter of Nationwide Mut. Ins. Co. [Miller], 95 AD2d 961). Although an aggrieved party has only 90 days in which to move to vacate or modify an award (CPLR 7511 [a]), said party may choose not to make a motion and raise the objection when the victor moves to confirm the award (see, Matter of Katz [Uvegi] 18 Misc 2d 576, 583, affd 11 AD2d 773; Morris v Government Employees Ins. Co., 95 Misc 2d 696, 697, affd 106 Misc 2d 448, revd on other grounds 81 AD2d 880; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C7511:l, C7510:l). Accordingly, Special Term acted properly in modifying the amount of the award. Mangano, J. P., Gibbons, Weinstein, Fiber and Spatt, JJ., concur.