Summary
finding the "date of loss" under the policy was "the date of the catastrophe insured against"
Summary of this case from T.N. Metro Holdings, I, LLC v. Commonwealth Ins. Co.Opinion
CA 05-02418.
March 17, 2006.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered January 11, 2005. The order granted defendant's motion for summary judgment dismissing the complaint.
JAMES F. ALLEN, PLLC, BUFFALO (JAMES F. ALLEN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
RICHARD P. PLOCHOCKI, SYRACUSE, FOR DEFENDANT-RESPONDENT.
Before: Pigott, Jr., P.J., Scudder, Gorski, Martoche and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover under their homeowners policy for losses arising from damage to their personal property caused by mold at their residence. Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint as time-barred. Defendant met its initial burden by establishing that plaintiffs failed to commence this action within two years after the date of loss as required by the policy, and plaintiffs failed to raise a triable issue of fact ( see Enright v. Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981; Compis Servs. v. Hartford Steam Boiler Inspection Ins. Co., 272 AD2d 886, 887). Contrary to the contention of plaintiffs, the date of loss is "the date of the catastrophe insured against," not the accrual date of their cause of action against defendant ( Costello v. Allstate Ins. Co., 230 AD2d 763, 763; see Roberts v. New York Prop. Ins. Underwriting Assn., 253 AD2d 807).