155th Street and 8th Avenue Realty Corp. v. National Casualty Co.

Appellate Division of the Supreme Court of New York

155th Street and 8th Avenue Realty Corp. v. National Casualty Co.

221 A.D.2d 290, 635 N.Y.S.2d 1, 1995 N.Y. App. Div. LEXIS 12349

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 30, 1995

StatusPublished

Cited by1 cases

This text of 221 A.D.2d 290 (155th Street and 8th Avenue Realty Corp. v. National Casualty Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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155th Street and 8th Avenue Realty Corp. v. National Casualty Co., 221 A.D.2d 290, 635 N.Y.S.2d 1, 1995 N.Y. App. Div. LEXIS 12349 (N.Y. Ct. App. 1995).

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Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered July 14,1994, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of denying the motions to dismiss with respect to the third, sixth and seventh causes of action, and otherwise affirmed, without costs.

Plaintiff insured’s causes of action against defendant insurer for breach of contract, a declaratory judgment that the incident arose from a covered peril, and failure to give notice of termination were properly dismissed as barred by the clear and unambiguous two-year period of limitations contained in the policy. However, that contractual limitation period should not have been applied to the claims against defendant brokers, who were not party to the policy and who are therefore subject to lengthier statutory limitations. To impose liability on the insurer, on the theory that it was a known principal of the brokers, would circumvent the contractual limitation period, and plaintiff’s attempt to do so should accordingly be rejected. Finally, insofar as this issue may still be pertinent in the case, it was error summarily to determine that the loss was caused by a burglary (for which the policy did not provide coverage), as opposed to vandalism (which was a covered peril), since this issue of fact was evident from the face of the police report.

Upon reargument the unpublished decision and order entered on July 6, 1995 (Appeal No. 55427) is recalled and vacated and a new decision and order substituted in place thereof decided simultaneously with this motion. Concur— Wallach, J. P., Kupferman, Nardelli and Williams, JJ.

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—Order, Supreme Court, New York County (Harold Tompkins, J.), entered July 14,1994, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of denying the motions to dismiss with respect to the third, sixth and seventh causes of action, and otherwise affirmed, without costs.

Plaintiff insured’s causes of action against defendant insurer for breach of contract, a declaratory judgment that the incident arose from a covered peril, and failure to give notice of termination were properly dismissed as barred by the clear and unambiguous two-year period of limitations contained in the policy. However, that contractual limitation period should not have been applied to the claims against defendant brokers, who were not party to the policy and who are therefore subject to lengthier statutory limitations. To impose liability on the insurer, on the theory that it was a known principal of the brokers, would circumvent the contractual limitation period, and plaintiff’s attempt to do so should accordingly be rejected. Finally, insofar as this issue may still be pertinent in the case, it was error summarily to determine that the loss was caused by a burglary (for which the policy did not provide coverage), as opposed to vandalism (which was a covered peril), since this issue of fact was evident from the face of the police report.

Upon reargument the unpublished decision and order entered on July 6, 1995 (Appeal No. 55427) is recalled and vacated and a new decision and order substituted in place thereof decided simultaneously with this motion. Concur— Wallach, J. P., Kupferman, Nardelli and Williams, JJ.

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221 A.D.2d 290, 635 N.Y.S.2d 1, 1995 N.Y. App. Div. LEXIS 12349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/155th-street-and-8th-avenue-realty-corp-v-national-casualty-co-nyappdiv-1995.

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