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In re the Arbitration between Allstate Insurance & Schlueter

267 A.D.2d 1098 Court N.Y. App. Div. Decision date 1999-12-30 Docket Appeal No. 2 English

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In the Matter of the Arbitration between Allstate Insurance Company, Appellant, and Richard A. Schlueter, Respondent, et al., Respondent.
(Appeal No. 2.)
[701 NYS2d 682]

—Judgment unanimously affirmed with costs. Memorandum: The petition to vacate the award of the SUM Arbitration Tribunal (Tribunal) pursuant to CPLR 7511 (b) (1) (iii) on the ground that the Tribunal exceeded its power in determining that the other vehicle was uninsured was properly denied by

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Supreme Court. This appeal from a judgment entered upon an order confirming an arbitration award brings up for review any nonfinal judgments or orders that necessarily affect the final judgment (see, CPLR 5501 [a] [1]). The issue of arbitrability, however, was decided on the petition to stay arbitration (see, CPLR 7503 [b]), and the order dismissing that petition was final (see, Matter of Barnes [Council 82, AFSCME —Monroe], 246 AD2d 755 , 756; Matter of Barnes [Council 82, AFSCME— Monroe], 235 AD2d 826 ; see also, Flanagan v Prudential-Bache Sec., 67 NY2d 500 , 505, n 2, cert denied 479 US 931 ). Matter of Commerce & Indus. Ins. Co. v Nester ( 90 NY2d 255 ) involved separate appeals from an order denying a stay of arbitration and an order confirming the award.

We reject petitioner’s contention that the award lacks evidentiary support and is arbitrary and capricious (see, Matter of MVAIC v Aetna Cas. & Sur. Co., 89 NY2d 214 , 223). Finally, we determine that the court acted properly to confirm the award pursuant to CPLR 7511 (e). (Appeal from Judgment of Supreme Court, Livingston County, Alonzo, Jr., J.— Arbitration.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Scudder, JJ.

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