Opinion
570192/17
12-22-2017
AMERIPRISE INSURANCE COMPANY, Petitioner–Appellant, v. KENSINGTON RADIOLOGY GROUP, P.C. a/a/o Zoila McBean, Respondent–Respondent.
Order and judgment (Erika M. Edwards, J.), entered November 30, 2016, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 policy limit of the subject insurance policy was exhausted before petitioner became 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 & Presbyt. Hosp. v. Allstate Ins. Co. , 12 AD3d 579, 580 [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, 822–823 [1998] ; Countrywide Ins. Co. v. Sawh , 272 AD2d at 245 ; 11 NYCRR 65—1.1 ).
Here, petitioner-insurer's submissions in support of its petition to vacate the arbitration award—including an attorney's affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid—raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v. Northeast Anesthesia & Pain Mgt. , 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016] ; Allstate Ins. Co. v. DeMoura , 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, 1st Dept 2011] ). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.