Opinion
June 29, 1995
Appeal from the Supreme Court, Clinton County (Plumadore, J.).
At all times relevant to this action, plaintiffs operated a restaurant on the shore of Lake Champlain in Clinton County. The business procured its insurance from defendant, an insurance broker. At issue here is a Capital Mutual Insurance Company liability insurance policy that defendant obtained for plaintiffs, effective November 4, 1983 through November 4, 1986. On June 28, 1986, a restaurant patron injured her ankle when she stepped into plaintiff's shuttle boat (utilized to ferry boating patrons between their moored watercraft and the restaurant), and on February 22, 1988 she commenced a negligence action against plaintiffs to recover for her injuries. Capital Mutual disclaimed liability due to a policy exclusion for "bodily injury * * * arising out of the ownership, maintenance, operation, use, loading or unloading of * * * any watercraft owned or operated by * * * any insured". As a result of the disclaimer, plaintiffs were required to provide their own defense to the action and ultimately assume liability for damages of $140,000.
Plaintiffs commenced this action in March 1993, alleging defendant's breach of a professional and contractual duty to procure full and adequate liability insurance coverage, including liability insurance coverage for use of watercraft in connection with plaintiffs' restaurant business. In its answer, defendant pleaded, inter alia, the defense of Statute of Limitations and thereafter moved for summary judgment on that defense, among others. Supreme Court granted defendant's motion and dismissed the complaint. Plaintiffs now appeal and we affirm.
We conclude that plaintiffs' cause of action accrued at the time of issuance of the subject insurance policy in 1983 ( see, Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402; National Life Ins. Co. v. Hall Co., 67 N.Y.2d 1021) and in no event later than the June 28, 1986 injury to plaintiffs' patron ( see, Video Corp. v. Flatto Assocs., 85 A.D.2d 448, 455, mod on other grounds 58 N.Y.2d 1026; Blonsky v. Allstate Ins. Co., 128 Misc.2d 981). Application of the six-year limitations period ( see, Video Corp. v. Flatto Assocs., 58 N.Y.2d 1026, 1028) compels a determination that, unless tolled, the Statute of Limitations expired long before this action was commenced. In view of plaintiffs' "conclusive presumptive knowledge" of the terms of the insurance policy ( Rogers v. Urbanke, 194 A.D.2d 1024), there is no merit to the argument that defendant's failure to advise them that there was no coverage for watercraft liability constituted a fraudulent concealment such as to toll the Statute of Limitations.
Crew III, White, Casey and Spain, JJ., concur. Ordered that the order is affirmed, with costs.