Melodya & Co., Inc., Plaintiff, v. Certain Underwriters at Lloyds London, Defendant. (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for DISMISSAL.

Plaintiff asserts claims against defendant for breach of contract and declaratory judgment arising out of defendant's denial of a property insurance claim. Defendant now moves pre-answer to dismiss the complaint pursuant to CPLR 3211(a)(1), (a)(5), and (a)(8), arguing that plaintiff's claims are time-barred, and that the Court lacks personal jurisdiction over defendant because it was not properly served or named herein. Plaintiff opposes. For the reasons below, defendant's motion is granted.

Allegations

Defendant issued an insurance policy for plaintiff's restaurant business located in Queens County, New York, effective from May 26, 2017, through May 26, 2018 (Complaint ¶ 10; Policy [NYSCEF Doc. 24]). The policy provides that any legal action thereunder must be commenced "within 2 years after the date on which the direct physical loss or damage occurred" (Policy at 18, § D.2). The policy further provides that, as may be reasonably required, defendant is permitted to inspect the damaged property "proving the loss or damage" (Policy at 31, § 3.a [6]).

On January 6, 2018, frozen pipes burst at the premises, causing water damage to certain DJ and electronic equipment worth approximately $49,833.00 (Complaint ¶¶ 2-3). By the time defendant's representative arrived to inspect the property in August 2018, plaintiff could not locate the allegedly damaged electronic equipment (id. ¶¶ 5-7). By letter dated October 1, 2018, defendant denied plaintiff's claim because "an inspection of these damages could not be completed nor damages verified" (id. ¶ 8; Denial Letter at 1-2 [NYSCEF Doc. 32]).

Plaintiff asserts claims in the complaint for (1) breach of the policy, and (2) declaratory judgment that defendant is liable to plaintiff under the policy for the alleged loss (Complaint ¶¶ 9-28).

Personal Jurisdiction

CPLR § 3211(a)(8) provides for dismissal of an action based on the court's lack of personal jurisdiction over the defendant. Once the moving party establishes, prima facie, the merit of a motion under this provision, the party asserting jurisdiction has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction (Fischbarg v Doucet, 9 NY3d 375, 381 at n. 5 [2007]; Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 73-74 [1st Dept 2024]; Coast to Coast Energy, Inc. v Gasarch, 149 AD3d 485, 486 [1st Dept 2017]).

Defendant argues that the Court lacks personal jurisdiction over it. Plaintiff commenced this action by summons with notice, and defendant served a demand for complaint pursuant to CPLR 3012(b), which, by its terms, "does not of itself constitute an appearance in the action." Defendant further argues that the parties' stipulation extending plaintiff's time to serve the complaint expressly provides that the stipulation does not constitute an appearance in the action and defendant did not waive any jurisdictional defenses (see Lupiani Affirm., Ex. A at 2 [NYSCEF Doc. 26]). The complaint was filed via NYSCEF, but there is no affidavit of service of the complaint (see Complaint [NYSCEF Doc. 21]; Aff. of Service of Summons with Notice [NYSCEF Doc. 20]). In opposition, plaintiff seeks an extension of time to serve process on defendant pursuant to CPLR 306-b for good cause and in the interest of justice.

"CPLR 306-b authorizes an extension of time for service in two discrete situations: 'upon good cause shown' or 'in the interest of justice' " (Henneberry v Borstein, 91 AD3d 493, 495 [1st Dept 2012]). "The Court of Appeals has confirmed that the 'good cause' and 'interest of justice' prongs of the section constitute separate grounds for extensions, to be defined by separate criteria (id.). Here, plaintiff is not entitled to a good cause extension of time to serve defendant, because it has not shown reasonable diligence in attempting service (Holland v Thiam, 201 AD3d 546, 547 [1st Dept 2022], lv dismissed 37 NY3d 1228 [2022]; MTGLQ Investors, L.P. v Shay, 190 AD3d 527, 529 [1st Dept 2021], lv denied 37 NY3d 908 [2021]).

Weighing the various relevant factors in considering an interest of justice extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-06 [2001]), the Court also denies an extension of time to serve defendant under that prong. Plaintiff has not shown diligence in seeking to serve defendant, waiting both until after the expiration of the 120-day service period (Holland v Thiam, 201 AD3d at 547; Goldstein Group Holding, Inc. v 310 East 4th Street Housing Development Fund Corp., 154 AD3d 458, 459 [1st Dept 2017]), and after defendant moved to dismiss this action before requesting an extension (Diaz v Nasir, 228 AD3d 572, 573 [1st Dept 2024]; see also Webb v Greater New York Auto. Dealers Ass'n, Inc., 93 AD3d 561, 562 [1st Dept 2012]). Accordingly, the Court finds that defendant is entitled to dismissal of this action on jurisdictional grounds

Timeliness of the Claims

Defendant argues that plaintiff's claims are time-barred under the two-year limitations period in the policy. Specifically, defendant maintains that the time for plaintiff to file its claims began to run on the date of the alleged loss, January 6, 2018, and that the limitations period ended two years later, on January 5, 2020.

In opposition, plaintiff maintains that the limitations period did not begin to run until plaintiff received the October 1, 2018, denial letter; and that the denial letter provides that plaintiff had six years from the date of loss to sue (see Denial Letter at 3 ["Please be advised that you have six (6) years to file a civil action for breach of contract against parties at interest from the date of the accident, otherwise any claim will be time barred"]). Plaintiff further argues that certain COVID-19 executive orders issued by former Governor Cuomo tolled the statute of limitations, so that plaintiff had until May 1, 2021, to bring suit. In the event the Court finds the claims time-barred, plaintiff seeks a post hoc extension of time to serve his claims in the interest of justice pursuant to CPLR 306-b.

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). "On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Benn v Benn, 82 AD3d 548 [1st Dept 2011]; see also Norddeutsche Landesbank Girozentrale v Tilton, 149 AD3d 152, 158 [1st Dept 2017]). "To meet its burden, the defendant must establish, inter alia, when the plaintiff's cause of action accrued" (Lebedev v Blavatnik, 144 AD3d 24, 28 [1st Dept 2016]). "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is inapplicable or whether the action was commenced within the statutory period" (MTGLQ Investors, LP v Wozencraft, 172 AD3d 644, 644-45 [1st Dept 2019], lv dismissed 34 NY3d 1010 [2019]).

Here, the Court must enforce the two-year limitations provision in the policy according to its unambiguous, reasonable terms (see Iken-Murphy v State Farm Insurance Co., 195 AD3d 470, 470-471 [1st Dept 2021]; AXA Winterthur Insur. Co. v Transvalue, Inc., 158 AD3d 533, 536 [1st Dept 2018]). Because plaintiff did not bring suit within the applicable two-year period, defendant has conclusively established a defense to plaintiff's claims on the ground they are time-barred (Farage v Associated Insurance Management Corp., 210 AD3d 470, 471 [1st Dept 2022], aff 43 NY3d 152 [2024]; Beekman Regent Condominium Ass'n v Greater New York Mut. Ins. Co., 45 AD3d 311 [1st Dept 2007]).

The parties' remaining arguments not specifically addressed herein are rejected as unavailing. Accordingly, it is hereby

ORDERED that defendant's motion dismiss the complaint is GRANTED; and it is further

ORDERED that, within 20 days of entry of this order, defendant shall serve a copy of this order with notice of entry upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further

ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).

This constitutes the decision and order of the Court.

DATE 8/17/26

ASHLEE CRAWFORD, J.S.C.

Ashlee Crawford, J.