In October 2023, Chip asked whether a federal judge could appoint an umpire in a New York insurance appraisal. 1 The answer in Victor’s Café is now clear: the umpire was selected by the New York Supreme Court in New York County, after the federal court directed Travelers to apply there under New York Insurance Law § 3408. The federal court did not select the umpire. It later stayed the federal action while the appraisal proceeded.
The Statute Pointed the Parties to State Court
The question arose in Victor’s Café 52nd Street, Inc. v. Travelers Indemnity Company of America, No. 22-cv-07223 (S.D.N.Y.). The federal court had directed the parties to select an umpire. When they could not agree, they asked the court to choose one. Travelers then questioned whether the federal court had authority to do so because the policy’s appraisal language tracked New York’s statutory procedure.
New York Insurance Law § 3408(a) provides that an application to select an umpire under the appraisal provisions of the New York standard fire insurance policy “shall be made to a justice of the supreme court residing in the county or to a county judge of the county in which the lost or damaged property is or was located.” The damaged property in Victor’s Café was in New York County.
On November 14, 2023, Magistrate Judge Sarah Netburn ordered Travelers to submit an application to the state-court official identified in § 3408. 2 The order resolved the procedural question in this case: the parties had to seek appointment in state court rather than ask the federal court to select the umpire.
New York Supreme Court Appointed the Umpire
Travelers commenced a proceeding in New York County Supreme Court. The state-court docket reflects an application to appoint an umpire and subsequent proceedings on that request. On January 24, 2024, Travelers reported to the federal court that the New York Supreme Court had selected an umpire.
The federal court then granted Travelers’ unopposed request to stay the case pending appraisal. 3 Judge Netburn’s January 30, 2024, order required the parties to file status letters every 90 days and to notify the court when appraisal was complete. The federal court’s order confirms the division of roles: the state court selected the umpire; the federal court managed the pending federal case.
What the Answer Establishes and What It Does Not
For this policy and this record, the answer to the original question is no: the federal judge did not appoint the umpire. The federal court directed the parties to use the New York statutory process, and the New York Supreme Court made the selection.
That is a case-specific answer, not a broad appellate holding that federal courts can never appoint an umpire in any New York appraisal. The November 14 order applied § 3408 to this policy’s materially similar appraisal language and directed an application to state court. It did not announce a general rule for policies with different language or circumstances.
The practical point for parties handling a New York appraisal is straightforward. If the appraisers cannot agree on an umpire and § 3408 governs the selection, the application should be made in the county where the damaged property is located, as the statute directs. In Victor’s Café, that process produced a state-court appointment and allowed the appraisal to move forward while the federal action remained stayed.
The case answers the question left open in Chip’s earlier post. In Victor’s Café, the New York Supreme Court appointed the umpire.
1 Chip Merlin, “New York Appraisal—Can a Federal Judge Choose the Umpire?” Property Insurance Coverage Law Blog (Oct. 27, 2023): https://www.propertyinsurancecoveragelaw.com/blog/new-york-appraisal-can-a-federal-judge-choose-the-umpire/
2 Victor’s Café 52nd Street, Inc. v. Travelers Indemnity Co. of America, No. 22-cv-07223 (S.D.N.Y. Nov. 14, 2023) (ECF No. 53);
3 Id. (Jan. 30, 2024) (ECF No. 57).
