Opinion
May 16, 1994
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the order is affirmed, with costs.
The court correctly dismissed the complaint as untimely because the plaintiff did not commence this action within 24 months of the loss as required by the policy conditions. "Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel" (Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968). That the defendant made partial payment on the plaintiff's claim does not compel reversal, since the record contains evidence that the defendant disputed part of the claim, and "[t]his is not the stuff of waiver or estoppel which could lull anyone into a belief that the `negotiations' had passed from contention into settlement" (Kaufman v. Republic Ins. Co., 35 N.Y.2d 867, 868).
Finally, the plaintiff's untimely commencement of this action is not excused by the defendant's subsequent untimely appearance. Bracken, J.P., Miller, Copertino, Santucci and Altman, JJ., concur.