Monday, December 15, 2008

Suit Brought Two Years & 20 Days After Loss Date Dismissed as Untimely

Dimmick v. New York Prop. Ins. Underwriting Assn.

(2nd Dept., decided 12/9/2008)

Property insurance policies usually contain a suit limitations period shorter than a jurisdiction's statute of limitations for breach of contract.  In New York, for example, property insurers may provide for a two-year suit limitations period for losses due to fire or lightning.  See, New York Insurance Law § 3404(e).  New York courts have repeatedly upheld such provisions as both valid and enforceable.  Absent evidence of waiver or estoppel, suits commenced after the two-year loss anniversary are summarily dismissed.  This is another such case.

Plaintiff sustained a fire loss on July 11, 1999 but, in non-compliance with the policy's suit limitations period, did not commence suit against her insurer, New York Property, until July 31, 2001 -- two years and 20 days after the loss date.  Kings Supreme granted plaintiff's motion to restore the case to the trial calendar (plaintiff presumably having allowed the case to languish and be stricken from the court's calendar) and denied New York Property's CPLR 3211(a)(5) cross motion to dismiss the complaint as time-barred.

In REVERSING that order and dismissing the complaint, the Second Department held:
Parties to a contract may agree to limit the period of time within which an action must be commenced to a shorter period than that provided by the applicable statute of limitations (see CPLR 201; Joseph v Insureco, Inc., 25 AD3d 764, 765; C.D. City v Maryland Cas. Co., 4 AD3d 382, 383; Matter of Incorporated Vil. of Saltaire v Zagata, 280 AD2d 547). Here, the plaintiff failed to comply with the contractual limitations period under the policy. Further, in her papers submitted in opposition to the defendant's motion, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(5) as time-barred, the plaintiff failed to demonstrate that the defendant engaged in any conduct during the limitations period that induced her to postpone bringing suit (see Halim v State Farm Fire & Cas. Co., 31 AD3d 710, 711; Schachter v Royal Ins. Co. of Am., 21 AD3d 1024; Neary v Nationwide Mut. Fire Ins. Co., 17 AD3d 331; Minichello v Northern Assur. Co. of Am., 304 AD2d 731). Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

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