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Allstate Insurance Company v. Alexandre Demoura A/A/O Miriam Cruceta
March 24, 2011
ALLSTATE INSURANCE COMPANY,
ALEXANDRE DEMOURA A/A/O MIRIAM CRUCETA,
Allstate Ins. Co. v DeMoura
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Shulman, J.P., Hunter, Jr., J.
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 v. 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.
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 ...
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