[*1]
| Allstate Ins. Co. v DeMoura |
| 2011 NY Slip Op 50430(U) [30 Misc 3d 145(A)] |
| Decided on March 24, 2011 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST
DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., J.
570324/10
Allstate Insurance Company,
Petitioner-Appellant,
against
Alexandre DeMoura a/a/o Miriam Cruceta, Respondent-Respondent.
| MARCH 24, 2011 |
| SUPREME COURT, APPELLATE TERM, FIRST
DEPARTMENT | | | |
| | | | | | |
| | | | | | | | June
2010 Term |
Shulman, J.P., Hunter, Jr., J.
Allstate Insurance Company,NY County
Clerk's No.
Petitioner-Appellant,570324/10
-against-
Alexandre DeMoura a/a/oCalendar No. 10-162
Miriam Cruceta,
Respondent-Respondent.
Petitioner appeals from an order of the Civil Court of the City of New York, New York County
(Tanya R. Kennedy, J.), dated March 16, 2009, which denied its petition to vacate an arbitration
award in favor of respondent awarding him unpaid no-fault benefits in the principal sum of
$11,170.42, and granted respondent's cross petition to confirm the arbitration award.
Per Curiam.
Order (Tanya R. Kennedy, J.), dated March 16, 2009, reversed, without costs, and matter
remanded to Civil Court for a framed issue hearing regarding whether the $50,000 limit of the
subject insurance policy was exhausted before petitioner-insurer was obligated to pay
respondent's claim.
When an insurer "has paid the full monetary limits set forth in the policy, its duties under the
contract of insurance cease" (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). A defense
that the coverage limits of the policy have been exhausted may be asserted by an insurer despite
its failure to issue a denial of the claim within the 30-day period (New York & Presby. Hosp. v
Allstate Ins. Co., 12 AD3d 579 [2004]), and an arbitrator's award directing payment in excess of
the $50,000 limit of a no-fault insurance policy exceeds the arbitrator's power and constitutes
grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821,
822 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1). Moreover, as
petitioner-insurer correctly argues, such error "will not be waived if the party relying on it asserts
it . . . in opposition to an application for confirmation" (Matter of Brijmohan v State Farm Ins.
Co., 92 NY2d at 822).
Here, petitioner's submissions on its motion to vacate the arbitration award and in opposition to
respondent's cross motion to confirm the award raised a triable issue of fact regarding whether
the $50,000 policy limit had been exhausted before payment could be made to respondent on its
claim (see 11 NYCRR 65-3.15). Therefore, we remand the matter to Civil Court for a framed
issue hearing on that issue.
We note that petitioner's remaining arguments are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur
Decision Date: March 24, 2011
Petitioner appeals from an order of the Civil Court of the City of New York, New York
County (Tanya R. Kennedy, J.), dated March 16, 2009, which denied its petition to vacate an
arbitration award in favor of respondent awarding him unpaid no-fault benefits in the principal
sum of $11,170.42, and granted respondent's cross petition to confirm the arbitration award.
Per Curiam.
Order (Tanya R. Kennedy, J.), dated March 16, 2009, reversed, without costs, and matter
remanded to Civil Court for a framed issue hearing regarding whether the $50,000 limit of the
subject insurance policy was exhausted before petitioner-insurer was obligated to pay
respondent's claim.
When an insurer "has paid the full monetary limits set forth in the policy, its duties under the
contract of insurance cease" (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). A
defense that the coverage limits of the policy have been exhausted may be asserted by an insurer
despite its failure to issue a denial of the claim within the 30-day period (New York &
Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]), and an arbitrator's award directing
payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator's
power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State
Farm Ins. Co., 92 NY2d 821, 822 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d
at 245; 11 NYCRR 65-1.1). Moreover, as petitioner-insurer correctly argues, such error "will not
be waived if the party relying on it asserts it . . . in opposition to an application for confirmation"
(Matter of Brijmohan v State Farm Ins. Co., 92 NY2d at 822).
Here, petitioner's submissions on its motion to vacate the arbitration award and in opposition
to respondent's cross motion to confirm the award raised a triable issue of fact regarding whether
the $50,000 policy limit had been exhausted before payment could be made to respondent on its
claim (see 11 NYCRR 65-3.15). Therefore, we remand the matter to Civil Court for a
framed issue hearing on that issue.
We note that petitioner's remaining arguments are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
[*2]
I concurI concur
Decision Date: March 24, 2011