Opinion
No. 4647.
March 29, 2011.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 12, 2010, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Alpert Kaufman, LLP, New York (Morton Alpert of counsel), for appellants.
Lazare Potter Giacovas, LLP, New York (Andrew M. Premisler of counsel), for U.S. Fidelity and Guaranty Company and The St. Paul Companies, respondents.
Before: Tom, P.J., Sweeny, Catterson, Acosta and Manzanet-Daniels, JJ.
Plaintiffs are precluded from obtaining reimbursement on a replacement cost claim since they "failed to satisfy the condition precedent of rebuilding" ( DeLorenzo v Bac Agency, 256 AD2d 906, 907; see D.R. Watson Holdings, LLC v Caliber One Indem. Co., 15 AD3d 969, lv dismissed 5 NY3d 842; Alpha Auto Brokers v Continental Ins. Co., 286 AD2d 309, 310). Plaintiffs have the burden of proving that the alleged loss is covered under the policy ( see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339), and the record establishes that there is no dispute that plaintiffs have never rebuilt or replaced the restaurant. Thus, their request for further discovery would not be productive ( see Oates v Marino, 106 AD2d 289, 292).
The complaint is also barred by the clear and unambiguous two-year suit limitations period in the policy ( see Costello v All-state Ins. Co., 230 AD2d 763). Contrary to plaintiffs' contention, defendant insurer did not waive, nor is it estopped from asserting, its contractual limitations defense based upon the fact of its payment of a portion of plaintiffs' claim before the expiration of the limitations period ( see New Medico Assoc. v Empire Blue Cross Blue Shield, 267 AD2d 757, 759).
Claims in negligence are governed by the three-year limitations period set forth in CPLR 214 (4) ( see Tischler Roofing Sheet Metal Works Co. v Sicolo Garage, 64 Misc 2d 825). The record demonstrates that the date of the loss of the restaurant was September 11, 2001; plaintiff received payment in the sum of $3,400,000 from the insurance carrier and the claim was closed on December 19, 2001; plaintiffs representative was able to reopen the claim in March 2002; and plaintiff received an additional $181,288 on September 27, 2002. Since this action was brought on April 12, 2006, plaintiffs' claim against their adjuster was properly dismissed as time-barred.
We have considered plaintiffs' remaining contentions and find them unavailing.