Opinion
240 CA 18–02017
06-28-2019
Kathleen CUSHING, Now Known as Kathleen Wiatr, Plaintiff–Appellant, v. ALLSTATE FIRE AND CASUALTY INS. CO., and Frank Boden Insurance Agency, Defendants–Respondents.
GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF–APPELLANT. SUGARMAN LAW FIRM, LLP, SYRACUSE (BRITTANY L. HANNAH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF–APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (BRITTANY L. HANNAH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging, inter alia, that Allstate Fire and Casualty Ins. Co. (defendant) breached its insurance policy with her by refusing to provide coverage for several losses to her home occurring in 2014. She appeals from an order that, among other things, granted defendants' motion insofar as it sought summary judgment dismissing her second cause of action, for payment of replacement costs under the insurance policy to cover storm damage to her roof. We affirm.
The clear and unambiguous terms of the insurance policy required defendant to pay plaintiff the "actual cash value" of such damage and provided that defendant would pay additional repair or replacement costs only if plaintiff made such repairs or replacement within two years from the date of loss. Defendants thus met their initial burden on the motion by establishing that defendant paid plaintiff the actual cash value of the damage to the roof and that plaintiff did not repair or replace the roof within two years from the date of loss (see generally Venigalla v. Penn Mut. Ins. Co. , 130 A.D.2d 974, 975, 515 N.Y.S.2d 939 [4th Dept. 1987], lv dismissed 70 N.Y.2d 747, 519 N.Y.S.2d 1034, 514 N.E.2d 392 [1987] ).
In opposition to the motion, plaintiff failed to raise an issue of fact concerning the applicability of the defense of estoppel (see Enright v. Nationwide Ins. [Appeal No. 2], 295 A.D.2d 980, 981, 743 N.Y.S.2d 786 [4th Dept. 2002] ). Contrary to plaintiff's contention, there is no basis on which to estop defendant from invoking the two-year period under the insurance policy. "To establish the applicability of estoppel, plaintiff[ ] had to establish that defendant, by its conduct, lulled plaintiff[ ] into sleeping on [her] rights" ( id. ). In opposing defendants' motion, however, plaintiff did not identify any conduct by defendant that discouraged her from repairing or replacing the roof during the two-year period (see Snyder v. Allstate Ins. Co. , 70 A.D.3d 670, 671, 896 N.Y.S.2d 79 [2d Dept. 2010], lv denied in part and dismissed in part 17 N.Y.3d 748, 929 N.Y.S.2d 67, 952 N.E.2d 1060 [2011], rearg. denied 17 N.Y.3d 917, 934 N.Y.S.2d 369, 958 N.E.2d 548 [2011] ). Rather, by paying her the actual cash value of the roof damage, defendant enabled plaintiff to commence the repair or rebuilding process during the two-year period (see Lovett v. Allstate Ins. Co. , 86 A.D.2d 545, 546, 446 N.Y.S.2d 65 [1st Dept. 1982], affd 64 N.Y.2d 1124, 490 N.Y.S.2d 187, 479 N.E.2d 823 [1985] ; Bartholomew v. Sterling Ins. Co. , 34 A.D.3d 1157, 1159, 825 N.Y.S.2d 795 [3d Dept. 2006] ; Enright , 295 A.D.2d at 981, 743 N.Y.S.2d 786 ). Because she did not, Supreme Court properly determined that the insurance policy entitled her only to the actual cash value of the roof damage (see D.R. Watson Holdings, LLC v. Caliber One Indem. Co. , 15 A.D.3d 969, 969, 789 N.Y.S.2d 787 [4th Dept. 2005], lv dismissed 4 N.Y.3d 882, 798 N.Y.S.2d 726, 831 N.E.2d 971 [2005], lv dismissed 5 N.Y.3d 842, 805 N.Y.S.2d 543, 839 N.E.2d 897 [2005] ; Harrington v. Amica Mut. Ins. Co. , 223 A.D.2d 222, 228, 645 N.Y.S.2d 221 [4th Dept. 1996], lv denied 89 N.Y.2d 808, 655 N.Y.S.2d 888, 678 N.E.2d 501 [1997] ).