JOHNSON v. NORTHEAST AGENCIES INC (2025)

Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered on or about May 24, 2024, which granted defendants’ respective motions to dismiss the complaint against them under CPLR 3211(a)(5) as time barred, unanimously affirmed, without costs.

In 2016, plaintiff, the owner of a two-family building, engaged defendants as his insurance brokers to procure an insurance policy for the rental property.  In March 2018, an action was commenced against plaintiff seeking damages for personal injuries that occurred on his rental property.  In April 2018, the insurer disclaimed personal liability coverage because, among other reasons, the building was not an “insured location” under the policy.  Plaintiff commenced this negligence action against defendants in June 2023, over five years after the insurer disclaimed coverage.

Supreme Court properly concluded that plaintiff's cause of action accrued in April 2018, at the time of injury, when his insurer disclaimed coverage (see Lavandier v. Landmark Ins. Co., 26 A.D.3d 264, 264, 810 N.Y.S.2d 45 [1st Dept. 2006]).  Accordingly, the cause of action was untimely because it was commenced more than three years after the claim accrued (see CPLR 214[4];  Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 30–31, 725 N.Y.S.2d 592, 749 N.E.2d 161 [2001]).

The insurer's assignment of defense counsel, pending confirmation of the propriety of its disclaimer in a declaratory judgment action, did not make the disclaimer ambiguous or alter the date of accrual (cf.  Pulte Group, Inc. v. Frank Crystal & Co., 2012 WL 1372158, *2, 2012 U.S. Dist LEXIS 55547 [S.D.N.Y., April 18, 2012, No. 11 Civ. 6214(LAK)]).