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

Loretta MINICHELLO, et al., Respondents, v. NORTHERN ASSURANCE COMPANY OF AMERICA, et al., Appellants.

Decided: April 21, 2003

GABRIEL M. KRAUSMAN, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE and WILLIAM F. MASTRO, JJ. Speyer & Perlberg, LLP, Melville, N.Y. (Diana Brusca McDonough and Debra Ann Urbano of counsel), for appellants. Saul Jonathan Klein, Brooklyn, N.Y., for respondents.

In an action to recover damages for breach of an insurance contract, the defendants appeal (1) from an order of the Supreme Court, Queens County (Polizzi, J.), dated March 22, 2002, which denied their motion to dismiss the complaint pursuant to CPLR 3211(a)(5) as time-barred, and (2), as limited by their brief, from so much of an order of the same court, dated August 21, 2002, as, in effect, upon granting that branch of their motion which was for leave to renew, adhered to the prior determination and denied that branch of their motion which was for the imposition of a sanction upon the plaintiffs.

ORDERED that the appeal from the order dated March 22, 2002, is dismissed, as that order was superseded by the order dated August 21, 2002, made upon renewal;  and it is further,

ORDERED that the order dated August 21, 2002, is modified, on the law, by deleting the provision thereof that, in effect, upon granting renewal, adhered to the prior determination and substituting therefor a provision granting the defendants' motion to dismiss the complaint;  as so modified, the order dated August 21, 2002, is affirmed insofar as appealed from and the order dated March 22, 2002, is vacated;  and it is further,

ORDERED that one bill of costs are awarded to the defendants.

On April 1, 1999, a residence owned by the plaintiffs was damaged by fire.   The property was covered by a policy of insurance issued to the plaintiffs by the defendant, Northern Assurance Company of America, through the defendant, Suydam Agency, Inc.

 Upon, in effect, granting that branch of the defendants' motion which was for leave to renew, the Supreme Court erred in adhering to its original determination denying the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the claim is barred by the contractual period of limitations.   The defendants met their initial burden of establishing, prima facie, that the two-year limitations period found in the insurance policy expired prior to the commencement of the action (see Savarese v. Shatz, 273 A.D.2d 219, 220, 708 N.Y.S.2d 642;  Siegel v. Wank, 183 A.D.2d 158, 159, 589 N.Y.S.2d 934), whereupon the burden shifted to the plaintiffs “to aver evidentiary facts establishing that the case at hand falls within [an exception to the limitations period]” (Hoosac Val. Farmers Exch. v. AG Assets, 168 A.D.2d 822, 823, 563 N.Y.S.2d 954).   The plaintiffs failed to offer evidence that the defendants committed any act, much less that they engaged in a course of conduct which lulled them into inactivity in the belief that their claim would ultimately be processed (see 71 N.Y. Jur.2d, Insurance, § 2351 p. 521-4;  see also Carat Diamond Corp. v. Underwriters At Lloyd's, London, 123 A.D.2d 544, 546, 506 N.Y.S.2d 708), or that they were “induced by fraud, misrepresentation or deception to refrain from commencing a timely action” (Kiernan v. Long Is. R.R., 209 A.D.2d 588, 589, 619 N.Y.S.2d 723;  see Phillips v. Dweck, 300 A.D.2d 969, 750 N.Y.S.2d 910;  cf.   Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713).

 The record discloses that the delay in denial of the claim by the insurance company was attributable to the investigation of the claim and the plaintiffs' failure to cooperate in the investigation.  “Delay by the insurance carrier in completing its investigation of the claim does not excuse the plaintiff from timely commencing an action, since he or she is bound by the terms of the contract to either commence an action prior to the expiration of the limitations period or obtain a waiver or extension of such provision” (Brown v. Royal Ins. Co. of Am., 210 A.D.2d 279, 620 N.Y.S.2d 399;  see Blitman Constr. Corp. v. Insurance Co. of N. Am., 66 N.Y.2d 820, 498 N.Y.S.2d 349, 489 N.E.2d 236;  Phillips v. Dweck, supra;  Raniolo v. Travelers Indem. Co., 279 A.D.2d 514, 515, 718 N.Y.S.2d 884;  Compis Servs. v. Hartford Steam Boiler Inspection and Ins. Co., 272 A.D.2d 886, 887, 708 N.Y.S.2d 770).   Moreover, the defendants should not be estopped or found to have waived the protection of the limitations period provided for in the contract, where, as here, the plaintiffs refused to execute transcripts of their examinations under oath and otherwise failed to provide documents and information to which the defendants were entitled in their investigation of the claim (see Brown v. Royal Ins. Co. of Am., supra;  Myers, Smith & Granady v. New York Prop. Ins. Underwriting Assn., 201 A.D.2d 312, 313, 607 N.Y.S.2d 288, affd. 85 N.Y.2d 832, 623 N.Y.S.2d 840, 647 N.E.2d 1348;  Carat Diamond Corp. v. Underwriters At Lloyd's, London, supra at 546-547, 506 N.Y.S.2d 708).

The appellants' remaining contention is without merit.

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