Summary
In Greenpoint, for example, the court determined that triable issues arose from the carrier's acceptance of a proof of loss filed after the limitations period.
Summary of this case from Penna v. Peerless Ins. Co.Opinion
February 23, 1998
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
On January 8, 1992, certain property owned by the defendant Yolanda Reyes was damaged by fire. Reyes promptly reported the fire to her insurer, the defendant Security Mutual Insurance Company (hereinafter Security Mutual), and she submitted a written notice of claim of loss on January 22, 1992, identifying the plaintiff, Greenpoint Bank (hereinafter Greenpoint), as her mortgagee.
On July 15, 1993, Greenpoint wrote to Security Mutual to request that the proceeds of Reyes's insurance policy be paid directly to Greenpoint. Security Mutual indicated that it required a sworn proof of loss, which Greenpoint forwarded on October 21, 1993. Security Mutual rejected this proof of loss because of certain technical defects in the submission, and demanded that Greenpoint fill out a new statement. Greenpoint complied on April 5, 1994, but this second proof of loss was once again rejected, this time on the ground that the amount claimed was excessive. Greenpoint submitted a third proof of loss on June 30, 1994, and this claim was finally accepted by Security Mutual in a letter dated August 17, 1994. Under the terms of the policy, a check for the promised $68,335.50 should thereafter have been issued within 45 days. Instead, on January 12, 1995, Security Mutual rescinded its approval on the ground that its claim had become time-barred on January 9, 1994, because the policy gave Greenpoint only two years from the date of loss within which to sue.
On this record, we conclude that the Supreme Court properly determined that there are questions of act as to whether Security Mutual waived its right or is estopped to assert the period of limitations as a defense to Greenpoint's claim ( see, Burke v. Nationwide Ins. Co., 108 A.D.2d 1098, 1100; Pasmear Inn v. General Acc. Fire Life Assur. Corp., 44 A.D.2d 647; Albino Linoleum Carpet Serv. v. Utica Fire Ins. Co., 33 A.D.2d 638, 639; Longe's Estate v. Assurance Co., 107 N.Y.S.2d 961; cf., Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966).
O'Brien, J. P., Sullivan, Friedmann and Goldstein, JJ., concur.