From Casetext: Smarter Legal Research

ALLSTATE INS. CO. v DeMOURA

Appellate Term of the Supreme Court of New York, First Department
Mar 24, 2011
2011 N.Y. Slip Op. 50430 (N.Y. App. Term 2011)

Opinion

570324/10.

Decided 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.

PRESENT: Shulman, J.P., Hunter, Jr., J.


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). 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), 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; 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.


Summaries of

ALLSTATE INS. CO. v DeMOURA

Appellate Term of the Supreme Court of New York, First Department
Mar 24, 2011
2011 N.Y. Slip Op. 50430 (N.Y. App. Term 2011)
Case details for

ALLSTATE INS. CO. v DeMOURA

Case Details

Full title:ALLSTATE INSURANCE COMPANY, Petitioner-Appellant, v. ALEXANDRE DeMOURA…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Mar 24, 2011

Citations

2011 N.Y. Slip Op. 50430 (N.Y. App. Term 2011)