Opinion
003465 SCNY 2008.
Decided February 25, 2009.
Plaintiff Pro Se.
Lazare, Potter Giacovas, LLP, Attorneys for the Defendant, By: Andrew Premisler, Esq.
This is an action to recover funds under an insurance policy for property damage to Plaintiff's offices located on the 77th Floor of One World Trade Center which were destroyed on September 11, 2001. The defendant seeks summary judgment dismissing plaintiff's causes of action pursuant to CPLR § 3212, claiming that this action was brought beyond a two year limitation period as stated in the insurance policy and as required under Insurance Law § 3404. The defendant claims that plaintiff failed to provide timely proof of loss within 60 days, as required under the policy, that the plaintiff is not a party to or named on the insurance policy and cannot seek to recover in this action.
The plaintiff opposes the motion and claims that the defendant should be estopped from raising and enforcing the statute of limitations under the policy because he was not provided with a full copy of the policy until after commencement of this small claims action. Plaintiff claims that payment of $10,000.00 by check covering part of the claim constitutes waiver. This check was made out to him personally and mailed to his home address and not Threshold Capital Management at its temporary offices. The proof of loss was submitted an additional 30 days after the 60 days indicated because of delays in receipt of mail and the poor condition of the forms upon receipt. The defendant failed to provide sufficient proof of mailing and receipt. The plaintiff alternatively seeks to have the caption amended to include Threshold Capital Management as plaintiff and reflect the full name of the defendant, "Travelers Indemnity of Connecticut."
LEGAL ANALYSIS
A motion for summary judgment requires the proponent to make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id.; Klein v. City of New York, 89 NY2d 833, 834-35 (1996); Ayotte v. Gervasio, 81 NY2d 1062, 1062 (1993), Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986), Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985), Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, 90 NY2d 204, 208 (*1997); Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-34 (1999); Iselin Co. v Mann Judd Landau, 71 NY2d 420, 427 (1988). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. ( SSBS Realty Corp.v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-85 [N.Y.A.D.,1st Dept.,1998]; Martin v. Briggs, 235 AD2d 192, 196 [N.Y.A.D.,1st Dept., 1997].
The small claims court is designed to provide, "substantial justice between the parties according to substantive law,"without having to be bound by the rules of practice and procedure or evidence. See, New York City Civil Court Act § 1804, Weiner v. Tel Aviv Car and Limousine Service, Ltd., 141 Misc 2d 339, 553 NYS2d 372 [NY City Civ. Ct. 1988] and Friedman v. Seward Park Housing Corp., 167 Misc 2d 57, 639 NYS2d 648 [Sup. Ct. App. Term 1st Dept. 1995]. Statutes of limitations have been held to provide an important public policy of "giving repose to human affairs" and are deemed more than procedural or evidentiary rules such that they should be applied in Small Claims Actions. Cerio v. Charles Plumbing Heating Inc., 87 AD2d 972, 450 NYS2d 90 [N.Y.A.D. 4th Dept. 1982], Ryder v. Tannenbaum, 130 Misc 2d 42, 494 NYS2d 950 [NY City Civ. Ct. Kings Cnty.1985] aff'd 137 Misc 2d 326, 524 NYS2d 321.
An insurance policy that has provisions for the date a cause of action accrues, and the limitation period, will be enforced; this includes a limitation period that incorporates Insurance Law § 3404. In the absence of provisions in the insurance policy, the cause of action accrues from the date of rejection of the proof of loss and has the same limitation period, six years as a cause of action for breach of contract. Medical Facilities v. Pryke, 62 NY2d 716, 465 NE2d 39, 476 NYS2d 532 (1984), Proc v. Home Insurance Company 17 NY2d 239, 217 NE2d 136, 270 NYS2d 412 (1966), Carnegie Hill 90th Street Inc. v. Greater New York Mutual Insurance, 271 AD2d 333, 706 NYS2d 417 [N.Y.A.D,1st Dept., 2000] citing to Carat Diamond Corp. v. Underwriters at Lloyd's, London, 123 AD2d 544, 506 NYS2d 708 [N.Y.A.D .1st Dept. 1986] and Diamond Lease (USA) Inc. v. Travelers Indemnity, Co., 6 Misc 3d 1013 (A), 800 NYS2d 345 [Sup. Ct. NY Cnty., 2004].
The defendant has indicated that there is such a clause in the insurance policy under the section titled "Business Owners Property Coverage Special Form," at page 17 of 21, subparagraph 4, titled "Legal Action Against Us," it states in relevant part:
"No one may bring a legal action against us under this Coverage Form unless:
a. There has been full compliance with all of the terms of this
Coverage Form.
b. The action is brought within 2 years after the date on which
The direct physical loss or damage occurred."
Pursuant to the insurance policy this action, commenced on September 17, 2008, was brought more than seven years after September 11, 2001 and is untimely. The defendant has made its prima facie showing and the burden of proof shifts to the plaintiff.
The defense of statute of limitations, according to the plaintiff, does not apply and should be dismissed under the doctrines of waiver and estoppel.
The doctrine of waiver involves an, "intentional relinquishment of a known right and should not be lightly presumed." The plaintiff is required to provide evidence that it can be reasonably inferred, an insurer has clearly manifested an intent to waive its contractual limitations period provided under the policy. Estoppel requires the plaintiff to provide facts which demonstrate that defendant, by its conduct, "lulled plaintiff into sleeping on its rights under the insurance contract." Gilbert Frank Corporation v. Federal Insurance Company, 70 NY 966. 520 NE2d 512, 525 NYS2d 793 (1988) and Proc v. Home Insurance Company 17 NY2d 239 , supra . The plaintiff is required to provide proof of waiver or estoppel in evidentiary form, not "argumentative conclusions." Kaufman v. Republic Ins. Co., 25 NY2d 867, 323 NE2d 189 (1974). Evidence concerning settlement negotiations between the parties without more is not enough to prove waiver or estoppel. A partial payment by an insurer of a plaintiff's claim alone is also insufficient to prove that the limitations period was extended for a reasonable period of time and does not raise a material issue of fact requiring a trial. Beekman Regent Condominium Association v. Greater New York Mutual Ins. Co., 45 AD3d 311, 845 NYS2d 38, [N.Y.A.D. 1st Dept. 2007] and Diamond Lease (USA), Inc. v. Travelers Indemnity, Co., 6 Misc 3d 1013 (A) , supra .
The failure to provide a complete copy of the insurance policy after it was requested by the insured may be a basis to assert an estoppel defense if the plaintiff can demonstrate that it relied on the incomplete policy to its detriment. The plaintiff would have to demonstrate that he relied on the incomplete policy which did not include the limitation period and that he would not have otherwise known about it. Carat Diamond Corp. v. Underwriters at Lloyd's, London, 123 AD2d 544, 506 NYS2d 708 [N.Y.A.D .1st Dept. 1986], Dockweiler v. Allstate Ins. Co., 222 AD2d 482, 6324 NYS2d 774 [N.Y.A.D. 2nd Dept. 1995] and C.I.T. Leasing Corporation v. Travelers Insurance Company, 145 AD2d 973, 536 NYS2d 344 [N.Y.A.D. 4th Dept. 1988] .
Plaintiff in opposing this motion indicates that there was an e-mail and letter sent to the defendant requesting a full copy of the insurance policy but does not annex copies of either the printout or the document, and instead quotes selected portions he deems relevant as part of his affidavits in opposition. The prior settlement negotiations with the plaintiff did not demonstrate an intent to pay the rest of the claim. There has been no demonstration of an intent to waive the limitations period under the policy.
CONCLUSION
The plaintiff has failed to prove that the defendant should be estopped from asserting a statute of limitations defense because he was intentionally lulled into refraining from commencing this suit within the two year limitation period provided under the policy. There is no demonstration by the plaintiff of communication with the defendant or additional requests for a full copy of the policy for almost six years, until commencement of this action. A request for a copy of the policy was not made again until October 16, 2008, approximately a month subsequent to commencement of this action. Plaintiff provides no explanation for the substantial delay in bringing this action. The proof provided does not rise to the level of establishing a deceptive practice but rather of plaintiff sleeping on his rights. Though there may have been an issue of fact as to the timely receipt of the forms by the plaintiff for purposes of submitting proof of loss the plaintiff has not demonstrated waiver of the 60 day time period. Having found that plaintiff has failed to defeat this motion for summary judgment based upon an expiration of the statute of limitations this Court need not address the plaintiff's request to amend the caption.
Accordingly, the defendant's motion for summary judgment and to dismiss plaintiff's causes of action is granted.
The foregoing shall constitute the Decision and Order of the Court.