The Second Department dismissed the complaint against the employees because: "The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the individual defendants, Mark Malenczak, Davide Mateer, and Freida Hicks (hereinafter collectively the individual defendants), all employees of the defendant Allstate Insurance Company (hereinafter the insurer), as they cannot, under the circumstances of this case, be held personally liable to the plaintiffs (see Bardi v. Farmers Fire Ins. Co., 260 A.D.2d, 783, 787, 687 N.Y.S.2d 768 ; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915, 655 N.Y.S.2d 210 ; Benatovich v. Propis Agency, 224 A.D.2d 998, 998–999, 637 N.Y.S.2d 551 ).

The Second Department dismissed the complaint against the employees because: "The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the individual defendants, Mark Malenczak, Davide Mateer, and Freida Hicks (hereinafter collectively the individual defendants), all employees of the defendant Allstate Insurance Company (hereinafter the insurer), as they cannot, under the circumstances of this case, be held personally liable to the plaintiffs (see Bardi v. Farmers Fire Ins. Co., 260 AD2d, 783, 787, 687 N.Y.S.2d 768; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915, 655 N.Y.S.2d 210; Benatovich v. Propis Agency, 224 AD2d 998, 998-999, 637 N.Y.S.2d 551)." In Benatovich v. Propis Agency, Inc., 224 AD2d 998, 637 NYS2d 551 (4th Dept. 1996), the plaintiff obtained a homeowner's policy from defendant Travelers through the defendant Propis Agency.

Specifically, Defendant points to two New York Supreme Court, Appellate Division decisions purportedly holding that plaintiffs may not pursue breach of implied covenant claims when contractual limitations clauses bar their claims for breach of contract. See Mot. at 11 (citing Smile Train, Inc. v. Ferris Consulting Corp., 117 A.D.3d 629 (N.Y. App. Div. 1st Dep't 2014) and Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913 (N.Y. App. Div. 4th Dep't 1997)). The Order did not commit clear error with regard to these cases for at least two reasons.

Id. at 690. In Schunk v. New York Cent. Mut. Fire Ins. Co., 655 N.Y.S.2d 210 (App.Div. 1997), the contractual statute of limitations defense was upheld despite the fact that the carrier had actually made various offers of settlement. Only if a carrier engages in a course of conduct which lulls the policy holder into inactivity in the belief that its claim will be paid, or where the insured is induced by fraud or misrepresentation to refrain from commencing a timely action, will the carrier be estopped from asserting the statute of limitations defense.

The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the individual defendants, Mark Malenczak, David Mateer, and Freida Hicks (hereinafter collectively the individual defendants), all employees of the defendant Allstate Insurance Company (hereinafter the insurer), as they cannot, under the circumstances of this case, be held personally liable to the plaintiffs ( see Bardi v. Farmers Fire Ins. Co., 260 A.D.2d 783, 787, 687 N.Y.S.2d 768; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915, 655 N.Y.S.2d 210; Benatovich v. Propis Agency, 224 A.D.2d 998, 998–999, 637 N.Y.S.2d 551).

It is undisputed that plaintiffs failed to commence this action for first-party coverage under their homeowners insurance policy within two years after the occurrence causing the loss or damage, as required by a provision in the policy. "Such limitations periods are enforceable" ( Schunk v. New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 914; see Blitman Constr. Corp. v. Insurance Co. of N. Am., 66 NY2d 820, 823) and, although the action was commenced within the six-year statute of limitations for breach of contract actions ( see CPLR 213), "[i]t is well settled that parties to a contract may agree that a lawsuit must be commenced within a shorter period than that prescribed by law" ( Renee Knitwear Corp. v. ADT Sec. Sys., Northeast, 277 AD2d 215, 216). We note "[f]n addition [that] a party who signs a written contract 'is conclusively presumed to know its contents and to assent to them' . . ., and the signer is bound by its terms unless there is a showing of fraud, duress, or some other wrongful act on the part of any party to the contract" ( id.).

The limitations period for the implied- covenant claim was thus two years and began to run on February 21, 2014. See Schunk v. N.Y. Cent. Mut. Fire Ins. Co., 655 N.Y.S.2d 210, 212 (4th Dep't 1997) ("Because the [insurance policy's] limitations period had expired, the cause of action based upon breach of the implied covenant of good faith and fair dealing is . . . time-barred.")

(“the plaintiffs cannot seek the benefit of the coverage provided by the endorsement without being subject to the limitations of that coverage”) (citing Schunk v. New York Cent. Mut. Fire Ins. Co., 655 N.Y.S.2d 210 (App. Div. 1997)). The Russo Defendants made a property damage claim to Adirondack for damage caused by the fallen tree and received coverage under the Homeowners Special Form.

Defendant argues that where a contractual limitations period bars a breach of contract claim, a claim for breach of the implied covenant of good faith and fair dealing is also time-barred. See Reply at 11 (citing Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915 (4th Dep't 1997). The Court is not "strictly bound by state intermediate appellate courts," though their opinions have force unless "persuasive data [indicates] that the highest court of the state would decide otherwise."

Thus, Defendant was not obligated to call Plaintiff's attention to the Policy suit limitation provision. Blitman Constr. Corp. v. Insurance Co. of N. Am. , 66 N.Y.2d 820, 823, 498 N.Y.S.2d 349, 489 N.E.2d 236 (N.Y. 1985) ; seeSchunk v. New York Cent. Mut. Fire Ins. Co. , 237 A.D.2d 913, 914-15, 655 N.Y.S.2d 210 (N.Y. App. Div. 1997). Moreover, "[w]here a carrier omits from its declination letter a ground for denial of a claim, it may still raise it in the ensuing action as long as the carrier did not waive it and the plaintiff sustained no prejudice."