Empire Mutual Insurance v. Hornick

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about October 28, 1991, which denied petitioner’s application to vacate the award of the Master Arbitrator dated March 29, 1991, and dismissed the petition, unanimously affirmed, with costs.

Petitioner’s contentions rest upon the erroneous premise that the Master Arbitrator was required to uphold the propriety of its denial of respondent’s claim in the face of respondent’s refusal to keep two dental appointments scheduled by petitioner. The Master Arbitrator, however, upheld the finding of the arbitrator that petitioner had acted improperly and in violation of 11 NYCRR 65.15 (a) by treating the respondent-applicant as an adversary, and that its denial of respondent’s claim, therefore, was improper. That determination is not irrational and petitioner’s claim that the Master Arbitrator "exceeded his power or so imperfectly executed it that a final *708and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [iii]; Insurance Law § 5106 [c]) is without merit. Concur—Murphy, P. J., Milonas, Ellerin, Ross and Kassal, JJ.