Fox v. Allstate Insurance — 95 A.D.3d 1274

Majority

p. 1274

Eleanor Fox, Respondent, v Allstate Insurance Company, Appellant.

[944 NYS2d 888]—

In an action to recover damages for breach of an insurance contract, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated February 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant issued a homeowners policy of insurance to the plaintiff. The plaintiff sustained a water loss on October 25, 2005. On or about May 15, 2009, the plaintiff commenced this action to recover amounts allegedly due under the policy. The defendant moved for summary judgment dismissing the complaint, contending that the action was time-barred based on a two-year limitations provision set forth in the policy.

By citing the insurance policy’s two-year limitations period, the defendant satisfied its burden of producing evidence which, if uncontroverted, was sufficient to warrant judgment in its favor as a matter of law (see Gilbert Frank Corp. v Federal Ins.

p. 1275

Co., 70 NY2d 966 [1988]). In opposition, however, the plaintiff raised triable issues of fact as to whether the defendant, by-engaging in conduct which allegedly lulled the plaintiff into not pursuing her rights under the insurance contract upon the belief that the defendant would satisfy her claim, waived its right to assert, or was estopped from asserting, the period of limitations as a defense (see Greenpoint Bank v Security Mut. Ins. Co., 247 AD2d 583 [1998]; Burke v Nationwide Ins. Co., 108 AD2d 1098 [1985]; cf. Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]; McGivney v Liberty Mut. Fire Ins. Co., 305 AD2d 559 [2003]; Minichello v Northern Assur. Co. of Am., 304 AD2d 731 [2003]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Balkin, J.P., Leventhal, Hall and Cohen, JJ., concur. [Prior Case History: 2011 NY Slip Op 30438 (U).]

Cases cited

Gilbert Frank Corp. v. Federal Insurance 70 NY2d 966 N.Y. 1988-02-04 p. 1275
Greenpoint Bank v. Security Mutual Ins. 247 AD2d 583 N.Y. App. Div. 1998-02-23 p. 1275
Burke v. Nationwide Insurance 108 AD2d 1098 N.Y. App. Div. 1985-02-28 p. 1275
McGivney v. Liberty Mutual Fire Insurance 305 AD2d 559 N.Y. App. Div. 2003-05-19 p. 1275
Minichello v. Northern Assurance Co. of America 304 AD2d 731 N.Y. App. Div. 2003-04-21 p. 1275