Beekman v. Greater N.Y

Full title: THE BEEKMAN REGENT CONDOMINIUM ASSOCIATION et al., Appellants, v. GREATER…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 8, 2007

45 A.D.3d 311 (N.Y. App. Div. 2007)

2007 N.Y. Slip Op. 8363

845 N.Y.S.2d 38

Opinion

Nos. 1915, 602151/06.

November 8, 2007.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered March 19, 2007, which granted defendant's motion to dismiss the action as time-barred by a two-year contractual limitations period, unanimously affirmed, with costs.

Lederman Abrahams Lederman, LLP, Massapequa (Bruce H. Lederman of counsel), for appellants.

Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), respondent.

Before: Mazzarelli, J.P., Marlow, Williams, Catterson and Kavanagh, JJ.

Defendant insurer conclusively established a defense to the asserted claims as a matter of law by submitting documentary evidence ( see CPLR 3211 [a] [1]) that the policy contains a two-year limitations period and that plaintiffs' action was commenced after the expiration of that period ( see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Blitman Constr. Corp. v Insurance Co. of N. Am., 66 NY2d 820, 823). Plaintiffs' contention that they were unaware of the contractual limitations clause because of the length of the policy is insufficient to raise a factual issue as to the applicability of the contractual limitations period, since "an insured has an obligation to read his or her policy and is presumed to have consented to its terms" ( Katz v American Mayflower Life Ins. Co. of N.Y., 14 AD3d 195, 198, affd 5 NY3d 561). Defendant was under no obligation to call plaintiffs' attention to the limitations clause ( Blitman, 66 NY2d at 823), and the insurer's participation in settlement negotiations "either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel" ( Gilbert Frank, 70 NY2d at 968; see also Carnegie Hill 90th St. v Greater N.Y. Mut. Ins. Co., 271 AD2d 333).

We have considered and rejected plaintiffs' remaining claims.