KLAWITER v. CGU ONEBEACON INSURANCE GROUP (2006)

Plaintiffs commenced this action to recover under their homeowners policy for losses arising from damage to their personal property caused by mold at their residence.   Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint as time-barred.   Defendant met its initial burden by establishing that plaintiffs failed to commence this action within two years after the date of loss as required by the policy, and plaintiffs failed to raise a triable issue of fact (see Enright v. Nationwide Ins. [Appeal No. 2], 295 A.D.2d 980, 981, 743 N.Y.S.2d 786;  Compis Servs. v. Hartford Steam Boiler Inspection & Ins. Co., 272 A.D.2d 886, 887, 708 N.Y.S.2d 770). Contrary to the contention of plaintiffs, the date of loss is “the date of the catastrophe insured against,” not the accrual date of their cause of action against defendant (Costello v. Allstate Ins. Co., 230 A.D.2d 763, 763, 646 N.Y.S.2d 695;  see Roberts v. New York Prop. Ins. Underwriting Assn., 253 A.D.2d 807, 677 N.Y.S.2d 621).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: