CARNEGIE HILL 90TH STREET INC v. GREATER NEW YORK MUTUAL INSURANCE CO

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Supreme Court, Appellate Division, First Department, New York.

CARNEGIE HILL 90TH STREET, INC., Plaintiff-Appellant, v. GREATER NEW YORK MUTUAL INSURANCE CO., Defendant-Respondent.

Decided: April 20, 2000

ROSENBERGER, J.P., WILLIAMS, RUBIN and BUCKLEY, JJ. David Rosenberg, for Plaintiff-Appellant. Thomas D. Hughes, for Defendant-Respondent.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered June 21, 1999, which to the extent appealed from as limited by the brief, granted defendant's motion to dismiss plaintiff's first four causes of action as barred by a two-year contractually established limitations period, unanimously affirmed, without costs.

 Plaintiff has not offered evidence from which a clear manifestation of intent by defendant to relinquish the protection of the limitations period set forth in the parties' contract of insurance can be reasonably inferred (see, Carat Diamond Corp. v. Underwriters at Lloyd's, London, 123 A.D.2d 544, 506 N.Y.S.2d 708).   Nor is there evidence that defendant, by its conduct, lulled plaintiff into sleeping on its rights under the subject insurance policy (see, Kaufman v. Republic Ins. Co., 35 N.Y.2d 867, 363 N.Y.S.2d 951, 323 N.E.2d 189).   For the entire 2 1/212 year period during which the parties negotiated, the amount of damages sustained by plaintiff in the fire at its premises remained in dispute and defendant never relinquished its contention that plaintiff had submitted and was persisting in the assertion of a fraudulently exaggerated claim, and never offered more than $181,905 to settle the claim, which plaintiff found unacceptable.   Clearly, defendant's actions could not have lulled plaintiff into the belief that litigation would be unnecessary for it to collect the amount it sought under the subject policy.   Since the record does not support a finding that defendant waived reliance on the contractually established limitations period or that defendant should be estopped from such reliance, the motion court properly dismissed the first four causes of action as untimely.

We have considered plaintiff's remaining contentions and find them unavailing.

MEMORANDUM DECISION.