PATRIOT FORD LTD v. MIC PROPERTY CASUALTY INSURANCE CORP (2000)

In an action to recover damages for breach of an insurance contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), entered September 30, 1999, as denied its motion to dismiss the plaintiff's first, second, and third causes of action on the ground of untimeliness.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The attorney for the defendant insurance carrier signed a letter indicating his consent to execute a “final tolling agreement” upon terms he and the plaintiff's attorney had previously agreed upon.   According to the plaintiff, the agreement allegedly tolled the time to commence an action upon its first three causes of action until sometime beyond the date the instant action was, in fact, commenced.

It is undisputed that no written agreement was ever executed, and neither party submitted evidentiary proof as to the terms of the final tolling agreement.   Under these circumstances, the Supreme Court properly determined that there are questions of fact surrounding the issue of the existence of a final tolling agreement sufficient to preclude the granting of the defendant's motion for summary judgment (see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  cf., Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512;   Tymon v. Linoki, 16 N.Y.2d 293, 266 N.Y.S.2d 357, 213 N.E.2d 661;   Turkish Socy. of Rochester v. Cimino, 192 A.D.2d 1121, 596 N.Y.S.2d 277).

MEMORANDUM BY THE COURT.