Opinion
2012-05-30
Eleanor FOX, respondent, v. ALLSTATE INSURANCE COMPANY, appellant.
Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), for appellant. Koenig & Samberg, Garden City, N.Y. (Arnold Koenig of counsel), for respondent.
Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), for appellant. Koenig & Samberg, Garden City, N.Y. (Arnold Koenig of counsel), for respondent.
In an action to recover damages for breach of an insurance contract, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated February 18, 2011, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The defendant issued a homeowners policy of insurance to the plaintiff. The plaintiff sustained a water loss on October 25, 2005. On or about May 15, 2009, the plaintiff commenced this action to recover amounts allegedly due under the policy. The defendant moved for summary judgment dismissing the complaint, contending that the action was time-barred based on a two-year limitations provision set forth in the policy.
By citing the insurance policy's two-year limitations period, the defendant satisfied its burden of producing evidence which, if uncontroverted, was sufficient to warrant judgment in its favor as a matter of law ( see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512). In opposition, however, the plaintiff raised triable issues of fact as to whether the defendant, by engaging in conduct which allegedly lulled the plaintiff into not pursuing her rights under the insurance contract upon the belief that the defendant would satisfy her claim, waived its right to assert, or was estopped from asserting, the period of limitations as a defense ( see Greenpoint Bank v. Security Mut. Ins. Co., 247 A.D.2d 583, 668 N.Y.S.2d 501;Burke v. Nationwide Ins. Co., 108 A.D.2d 1098, 485 N.Y.S.2d 666;cf. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512;McGivney v. Liberty Mut. Fire Ins. Co., 305 A.D.2d 559, 759 N.Y.S.2d 379;Minichello v. Northern Assur. Co. of Am., 304 A.D.2d 731, 758 N.Y.S.2d 669). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.