Govea v Albert 2025 NY Slip Op 32312(U) June 26, 2025 Supreme Court, Kings County Docket Number: Index No. 507729/2023 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 06/30/2025 12:40 PM INDEX NO. 507729/2023 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/30/2025
At an IAS Trial Term, Part 75 ofthe Supreme Courtofthe State of New York, Kings County, at the Courthouse located at. 360Adains Street, Brooklyn, New Yorkon the 26th day ofJune 2025 PRE S ENT: HON.ANNEJ. SWERN, J.S.C.
DECISION &·ORDER EVELYN GOVEA, EDWARD CRUZ and RAYMOND Index No.: 507729/2023 ORTIZ, MERCEDES TORIBIO, IRIS NIEVES, AND ROBERT NIEVES, Calendar No,: 20, 21 & 22
Plaintif.i Motion Seq.: 001, 003 & 004
-against-·
MADELINE ALBERT,
Defendant.
Third-PartyPlaintif.i
-against-
NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION,
Third-Party Defendant.
Recitationofthefollowingpapets as.required by CPLR.2219(a): Papers N:umbered MS. 001 NYPIUA's Notice ofMotion, Affirtr1ation, Metr1orandum of Law and Bxhibits{NYSCEF 9-15) ................................. 1; 2 Memorandum ofLaw in Opposition (NYSCEF 41) ......... ,...................... .... ,.3 Memorandum of Lawin Reply (NYSCEF 60) ..-............... ;....•.... ;......... ;.. ,.... .A
MS. 003 NYPIUA' s Notice ofMotiori, Affirmation, Memorandum ofLaw and Exhibits (NYSCEF 44, 47-52) .. ,............... ;...... 5, 6 Memorlmduin t,f Law in. Opposition (NYSCEF 62) ...................................... :7 Memorandum ofLawinReply (NYSCEF 6i)..... ,.......... ,.............................. 8
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MS 004 NYPIUA's Notice of Motion, Affirmation, Memorandum of Law and Exhibits (NYSCEF 45, 53'-58) ................. ,..... 9, 10 Memorandum of Law in Opposition{NYSCEF 63} ..... ;..... ;.,; ..................... U Memorandum of Lawin Reply (NYSCEF64) .............................................. 12
Upon the foregoing papers, the decision and order ofthe Courtis as follows:
Introduction
The plaintiffs, who were tenants of defendant/third-party plaintiff, MadelineAlbert
(Albert), commenced separate actions arising from a fire on 8/12/2022 at ,Albert's property
located at236 Montrose Avenue, Brooklyn, New York 11206 (property). The cause of the fire . .
allegedly resulted from faulty wiring. Albert insured the property with third-party defendant,
New York Property UnderwtitingAssociation{NYPUIA). NYPUIA served a pre-answer motion
to dlsmiss the third-party actions in each action pursuant to CPLR § 3211 [a] [1] and [7] on the
policy provision that any legal action against NYPUIAarising out of the policy musthave been
commenced within two.years.afterthe date of loss.
While the motions were pending, aU three actions wern consolidated in this action by an
order dated 2/20/2025. The individual plaintiffs have not taken a positionon the motions.
Procedural· History
a) Govea v. Albert Index #507729/2023.
Plaintiff Govea commencecl an action for property damage against Albert on 3/13/2023
(DOC .. l). 1 The complaint alleges causes ofaction for negligence, breach of warranty of
habitability, constructive eviction, actual eviction, anc:l breach of contract to recover for property
damagei lost wages and emotional damages (id.:,7), Albert wa~ servedwith the summons and
corn.plaint on 4/lS/2023 (DOC. 2). On 6/12/2024, the parties executed .a stipulation extending
1 All references to NYSCEF in ibis.section refer to.Index #5Q7729/Z023.
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Albert's time to answer the complaintuntil 7/19/2024 (DOC. 3). An answer was served on
7/19/2024 (DOC. 4). A summons with interpleader complaint against NYPIUA was filed on
9/3/2024 (DOC. 2 and§) and served on the New York State Department ofFinancial Services,
NYPIU A's registered agent, pursuant to Insurance Law § 1212 ·[a] on 10/21/:2024 (DOC. 7). The
parties stipulated to extend NYPIUA's time to answer or otherwise respond to the complaint until
12/20/2024 (DOC 19). On 12/20/2024; NYPIUA served the pre-answer motion to dismiss the
thfrd,.party action (DOC. 9).
b) Torbio v. Albert Index #526320/2023
PlaintiffToribio commenced an action for property damage against Albert on 9/ ll /2023
(QOC. 1). 2 The complaint alleges causes of action for negligence, breach of warranty of
habitability, cortsttuctive eviction, actual eviction, and breach of contract to recover for property
damage, lost wages and emotional damages (id. :if6). Albert was served with the summons and
complaint ort 10/28/2023 (DOC. 2) and a motion for a default judgment on 3/14/2024 (DOC .. 9).
The motion was denied. On 6/12/2024, the parties executed a stipulation extending Albert's time
to answer the complaint until 7/19/2024 (DOC. 13). An answer was served on 7/19/2024 (DOC
H). A summons with interpleader complaint against NYPIUAwas filed on 9/3/2024 (DOC 15
and .1§) and served on the New York State Department of Financial Services on 10/21/2024
(DOC.18). The parties stipulated to extend NYPIUA'stimeto answer or otherwise respond to
the complaint until 12/20/2024 (DOC. 19). On 12/20/2024, NYPIUA served the pre-answer
motion to dismiss the thl,rcl-party action (DOC. 20).
i All references to NYSC:EF in this section refer tq hldex #5263.20/202.3.
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c) Nieves v. Albert Index #53 7425/2023
Plaintiff Nieves commenced an action for property damage against Albert on 12/21/20:H
(DOC. 1).3 The compla~nt alleges causes of action for negligence, breach of warranty of
habitability, constructive eviction, actual eviction, arid breach of con.tract to recoyer for property
damage, lost wages, homelessness damages Etnd emotional damages (id. :,r6). Albert was served
with the summons and cotrtplaintonl/8/2024 (DOC. 2) and amotion for a defaultjudgmt!nt on
3/25/2024 {DOC lO). The motion was denied. On 6/12/2024, the parties executed a stipulation
extending Albert's timetoansv.rer the complaint until 7/19/2024 (DOC. 13} 4 Ail answer was
served on 7/19/2024 (DOC 14}. A summons with interpleader complaint against NYPIUAwas
filed on 9/3/2024 (DOC. 16 ancl 11) and served on the New York State Department of Financial
Services on 10/21/2024 {DOC. 19). The parties stipulated to extend NYPIUA's time to answer
or otherwise respond to the complaint until 12/20/2024 (DOC. 19). On 12/20/2024, NYPIUA
served the pre-answer motionto dismiss the third-party action (DOC. 21).
NYPIUA issued a policy of insurance to Albert on 3/lo/2022. The policy provided
coverage for "direct physicalloss of or damage to Cover Property at the premises described in
theDedarationscai.ISe:d by or resulting from any CoveredLoss" subject to exclusions. The
Covered Property was the Building (§A.l. [a]).Albert's ·Business Personal Property {§A. l .[b]),.
_and Property of Others that is ''ih [Albert's] care, custody and control, and located in the
building'' (§A.1.[c])(NYSCEF 13, p.9). 5
3 All references to NYSCEF in this section refer to Index #53 7425/2023. 4 The stipulation in the Govea action was inadvertently filed in Index #537425/2023 . . 5 The exhibits in all three motions are the same. References to the exhibits refer to the docketiri. this action, Index #507729/2023. '' ' ' ' ' ' ' '
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Albert put NYPIUA on notice ofplaintiffs' lawsuits after answering their complaints on
7/19/2024 but before filing the third-party actions on 9/3/2024. NYPIUA issued a letter dated
8/27/2024 denying coverage to Albert forplaintiffs'1oss based on the policy provisions in
§A. l. and A.2. (NYSCEF 14 ). Based on this denial coverage, Albert commenced the third-:party
actions on 9/3/2024 in each action seeking (I} a declaratory judgtnentdirecting NYPIUA to
provide coverage for plaintiffs' losses_, (2) da:tnages arising from NYPIUA's breach of contract,.
and (3) express and implied indemnification under the policy for any damages incurred by
Albert.
NYPIUA's motion to dismiss is based on policy provision§ H.5.[b] that·states, ''No one
may bring a legal action against us under this policy unless (a) There has beenfull compliance
with all of the tertns ofthis policy; and (b) The action is brought within two years after the date
on which the direct physical loss or damage occurred" (NYSCEF 13. pp.26-27}
Arguments of Counsel
a) NYPIUA
A party may move :to dismiss a complaint based on a defense founded ondocutnentary
evidence, such as an insurance policy (CPLR § 3211 [a] [1]} and while accepting the facts as true
and affording plaintiff every favorable inference, the four corners· of the complaint fail to
cognizable state a cause ofaction {CPLR § 3211 [a] [71).
Under the policy provisions, only the building (§A.l.[a]) and Albert's personal business
property ( §A. l . [b]) are "covered property/' a11d rtot the personal property of others. (NYSCEF 13.
~). Section H. 5 [b] ofthe policy shortened the statute oflirni~atiohs: fot commencing any legal
action against NYPIU Ato two years fro,m the d11te of direct and physical foss (NYSCEF 13.
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pp.26-27). Therefore, the statute of limitations was shortened for all causes of action in Albert's
third-party complaints, regardless ofwhen each.cause.of action accrued.
Therefore, based on the foregoing policy provisions, since the personal property of
plaintiffs is excluded from coverage and Albert's third-party actions are untimely, all third:-party
complaints mustbe dismissed under CPLR § 3211 [a] [l] and [7].
Alternatively; if the Court does not dismiss the third-party complaints, the· declaratory
judgment cause of action must be dismissed as it is duplicative of the breach ofcontract cause ·of
action, which affords plaintiff an adequate remedy at law.
b) MadelineAlbert
Albertargues the motions should be denied because plaintiffs' losses for their personal
property were not specifically excluded from coverage in §A.2. [a] through [q] (NYSCEF JJ,.
p.9-11). Therefore, since there is an ambiguity between §A. L[c] [1] and [2] and §A.2. et seq., it
must be construed againstNYPIUA.
Further; itis argued that the statute of limitations fot a breach of conttactacctues atthe
time ofthe breach. Here, the. breach occurred. on 8/27/2024 ·when the denial letter was issued by
NYPIUA. Therefore,. the two-year statute oflimitations within the policy .. did. not start to run
until 8/27/2024. Albert also argues that plaintiffs' actions wete timely cOinrnenced Within the
statute of limitations; which renders the third-party actions timely. However, as "Ms. Albert Was
relocated asa result ofthe fire; .. [plaintiffs were] unable to serve Ms. Albert." When Albert
learned of the lawsuits in tile Spring 2024, she iinmediately forwarded the [lawsuits] to NYPIUA
for indemnification (NYSCEF 41; p.11).
The declaratoryjudgm.ent cause of a<:tion should not be dismissed because it seeks a
de.claratiort that the policy affords coverage to,Albert forplairitiffs' loss oftheir personal
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property. The breach of contract and indemnity causes ofactioil seekcompensatory damages if
Albert is held liableto and must pay plaintiffs for their losses.
c) NYPIUA's Reply
In addition to reiterating its original position, NYPIUApoints out that Albert
misconstrues the coverage and statute oflimitations policy· provisions.
The policy language is blear, "no one" may bring a lawsuit against NYPIUA unless it is
commenced within two years of the loss; Even if plaintiffs, who are not named insurecls under
the policy, could commence a legal action against NYPIUA, they did not commence their lawsuit
against N\'PIUAdirectly within two years ofthe date ofloss. The preach of contract cases
relied upon by Albert concerning the statute:of limitations are irrelevantbecause the Court was
not construing a shortened time frame in an insurance policy.
The declaratory judgment is duplicative of the. breach of contrac:tclaim because the Court
must determine thatthe policy covers plaintiffs' losses·to find a breach and thereafter award
compensatory damages if Albert is held liable to plaintiffs.
Law and Analysis
a) CPLR § 3211 [a] U]
"A motion pursuantto CPLR § 3211 [a] [ 1] to dismiss the complaint on the ground that . .
the ac:tiort is barred by documentary evidence may be [appropriately] granted oilly where the
documentary evidence utterly refutes th.e plaintiff's factual allegations, thereby conclusively
~st~blishing a defens~; ·as. a matter oflaw" (Karpovich v City ofNew York, 1.62 AD3 d 996, 997
[2d Dept 2018] citing Maw ere v Landc,u, 13 0 AD3 d 9.86, 987 [2d Dept 2015]; se.e also Beal Sav.
Bank v Sommer, ·8 NY3d 318, 324 [2007] [The c,onstruction of an µnam bigu:ous contract .is a
matter oflaw;] and Gosh,m v Mutua/Lifelnsurance, Co. ofN. Y., 98 NY2d 314, 326 [2002]). "To
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constitute 'docume11.tacy' evidence, the evidence·must be unambiguous, authentic, and
undeniable, such as judicial records and documents reflecting out-of-'-courttransactions such as
mortgages; . deeds, contracts,. and other papers, the contents of which are essentially undeniable;'
(Karpovichv City of New York, 162 AD3d at 997-998; see Prott v Lewin & Baglio; l 50 AD3d
908,909 (2d Dept20l7]), Although an insurance policy is also documentary evidence,
extraneous documents such as policy notices, which are effectively letters, are not (see Magee-
Boyle v Reliastar Life Ins; Co. ofNY, 173 Ab3 d 1157, 1159-1160 [2d Dept 2019]). Affidavits
submitted in supportofsuchmotion do not qualify asdocumentary evidence becausetheir
''contents can be controverted by other evidence, such as another affidavit'; (Phillips v Taco Bell
Corp.,J52AD3d 806, 807 [2dDept 2017]; Prottv Lewin& Baglio, 150AD3d at909). . . ..
b) CPLR § 3211 [al [71
Plaintiffs may submit affidavits in opposition to a motion to dismiss pursuant to CPLR
§ 3211 [a] [7] but it does not obligate thei:n to do so to avoid a dismissal (SeeRovello v Orofino
Realty Co., 40 NY2d 633,635 [1976]). Therefore, plaintiff may stand on the pleadings alone,
"confident that its allegations are sufficient to state all of the necessary elements of a cognizable
cause of action' 1· to survive a motion to dismiss under· CPLR § 3 211 fa] [7] (id). When.
deterinininga motion to dismisspursuantto CPLR § 3211 [a] [7], the Court must accept the
factual allegations in the complaint as true and "accord plaintiffs the benefit of every possible
favorable inference and determine only whether the facts as alleged fit into any cognizable legal
theory" (Leon v Martinez, 84 NY2d 83, 88 [ 1994]).
However, if the Court ~onsiders evidentiary rpaterial outsidt:; the pleadings artd the motion
is not converted to one.for sµmmary judgment, "the question becomes whether the pleader has a
cause of action,· not whether the pleader has stated one and, uriless it has been shown that a
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material fact as claimed by the pleader is not a fact at all, arid unless it can be said that no
significant dispute exists regarding it, [aJ dismissal should not [be granted]" (Board of Mgts; of
JOO Congress Condominium vBDS Congress, LLC, 152AD3d 478,480 [2cl Dept. 20171).
c) Statute of Limitations in Insurance Policies
"An agreement which modifies the Statute of Limitations by specifying a shorter, but
reasonable, period within which to commence an action is enforceable'; Executive Plaza, LLC v.
Peerless Ins. Co., 22 NY3d 511, 518 [2014] [internal citations omitted]). The Court of Appeals
has held that a contractual period of one year is enforceable. However, a problem with such a
contractual provision may arise from the accrual date ofa cause of action rather than the shorter
duration ofthe statute of limitations itself. (id.).
When the Court of Appeals decided Executive PIaza, LLC, ·the questjon to be determined
was an issue of first impression. It involved the interpretation of a fire insurance policy that
limited the time in which the insured could commence art action to two yearsJromthe date of the
fire. However~ the policy contained another clause that permitted the insured to recover the cost
ofreplacing destroyed property but only after the property had already been replaced. Therefore,
if the process ofreplacing the property tookmore than two years, the insured's claim was time-
batted before it came into existence under the policy provision. (22 NY3d 516).
The Court, citing a dissenting opinion, held that, [T]he period of thne within which an
action must be brought , .. should be fair and reasonable, in view of the circumstances of each
particular case ...... The circumstances, . not• the time;. must be• the .determining factor" (22. NY3d
519, quoting ContihentalLeather . Co: vLiverpool, Brazii & River PlateStearn Navigation Co., .
2S9 NY 621, 622-623 [1932] [J; Crane dissenting]; Stonewall Contt. Corp. vLdn$ 1s. Rail Rd.
Co., 186AD3d 640, 642 [2d Dept2020], quoting Executive Plaza; LLC v Peerless Ins. Co.,22
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NY3 d 519) .. A shorter time period that expires before an action can be commenced is not a
statute of limitation "but simply a nullification of the claim" (Executive Plaza, LLC v. Peerless
Ins. Co,, 22 NY3d 518; Filasky vAndover Cos., 230 AD3d 1297, 1299 [2d Dept 2024], quoting D&S Restoration, Inc. v Wenger Constr. Co., 1nc;, 160 AD3d 924, 296 [2d2018]). A cause of . . . .
action for breach of contract does not accrue oil the date of loss; itaccrues at the time of the
breach, which may be after the expiration of the Contractual shorten Hmitation of time.
Therefore, the shorter statute of limitations cannot be enforced because it cannot apply to a cause
of action that does not exist on the date of loss(Filasky vAndover Cos., 230 AD3d 1300).
Otherwise, ail· insured' s claim will be time'." barred (or nullified)• before it comes into existence
(Executive Plaza, LLC v. Peerless Ins. Cd., 22 NY3d 516).
d) The interpretation of contracts and insurance policies;
It is the function of the Couttto interpret an. unambiguous contract (CJzimartAssociates v
Paul, 66 NY2d 570, 572'.'"573 [1986]; Beacon Music Co. v a Schirmer, Inc:, 141 AD2d484, 486
[2d Dept 1988]). To do so, the initial questicm that must be answered by the Court is "whether
the·agreement on its face is reasonably susceptible of more than one interpretation" (66 NY2d
573). Any ambiguities in an insurance policY''are to.be.resolved in theinsured's favor and
against the insuree' (United States Fidelity & Guaranty Company v Annunziata, 67 NY2d :?29,
232 [1986]).
e) Analysis
The Court will first address the statute oflimitationsJssue, Albert's t}lird~party causes of
action for breach of contract are timely as the claim for breagh pfcontract did not accrue uti.til
NYPIUA issued the denial letter on 8/27/2024. Otherwise, such claims would be nullified before
they existed. (Executive Plaza, LLC vPeet.less Ins. Co,~ 22 NY3d 516-5 i 8; Filasky v Andover
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Cos;, 230 AD3d 1299; D&S Restoration, Inc. v Wenger Constr. Co., Inc., 160 AD3d 296).
Similarly, any claim for contractual indemnify under the insurance policy does not accrue until
Albert makes payment on plaintiffs' claims because the cause of action is notcomplet~ Wltil the
lossis suffered (Tedesco vA.P. Green Indus., Inc., 8NY3d.243, 247 [2007]; McDermottvNew
York; SONY2d211, 217 [L980]; CPLR §213 [2]). Accordingly; Albert's third~party actions are
timely.
However, affording plaintiff every favorable inference, "the insurance policy is clear and
unambiguous on its face [<1.nd] not reasonably susceptible of more than one inherpretation," The
loss of other persons' [plaintiffs'] personalproperty,.that is not in the care, custocly and control of
Albert, is not covered under the plain and unambiguous language of the insurance policy. There
are no inconsistences in the policy because the "care, custody and control" language is repeated
in policy provision §A;5. [b] [2] that only affords cover for the personal property of others in
Albert's care; custody and control, up to $2,500.00" (NYSCEF 13, p.17).
Neither party addresses the definition of the phrase "care, custody and Control" within the
policy, Where, ashere, the phrase is undefined in the policy, the test to be applied in construing
an insurance policy is "common speech" ( City of New York vPhiladelphia lndem. Ins. Co., 54
AD3d 709; 709 [2dDept 2008], citing Ace Wire & Cable Co. v Aetna Casualty & Surety Co., 60
NY2d 390, 398 [1983]). Under this test, "care" means the undertaking ofa responsibility (see
. Lang v Hanover Ins. Co., 49AD3d l068, 1069 [3 rd Dept 2008]) or having the right to "interfere" . . . .
with the property (see, generally Coitnty ofBroome v, Traveler$ lndem. Co., 58 NY2d 753, 760
[1982]) .. Once property js leased; the "e:~e, custody or control" of the tenanfs belongings
continue ~'in their hands" and the fact that a landlord may retain a in!;lster key for a~cess to a
leased premise.s, does not subject their personal property to the 1'care, custody or control of the
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landlord" (id.), Anoth~r litmus test to determine whether art insured had "care, custody or
.control" of personal property of another is wllether the insured had the right to use it (Dubay v
Trans.;.America Ins, Co., 75AD2d 312,319 [2d Dept 1980]).
The foregoing definitions render Albert's interpretation of the policy language that it
covers the plaintiffs' personal property [irt their apartments] is without merit. (Beacon Music Co.
v G. Schirmer; Inc., 141 AD2d 486). Therefore, since the third~party complaints do not allege
thatthe plaintiffs' personal property was in Albert's care, custodyand control, or state facts that
could be liberally construed as such, these complaints failto state any viable and cognizant
causes of action covered by the policy of insurance arisingout of the 8/12/2022 fire (Leonv
Martinez, 84 NY2d 88; CPLR § 32·11 [a] [7]).
The insurance policy's clear and unambiguous language also establishes that there is no
endorsement affording coverage to Albert or other persons for personal injuries such as
emotional distress ot incidental dat11ages related thereto such as lost wages and homelessness as
alleged in plaintiffs' complaint. This policy strictly coveted thebuilding;Albert's personal
business property, and the property of others withinAlbert's care, custody and control.
Therefore, th.e insurance policy also utterly refutes the plaintiff's factual allegations, thereby
conclµsively establishing a documentary clefense, as a matter oflaw (Karpovich v City a/New
York, 162 ADJ d 997; CPLR § 3211 [a.] [I]}.
Based on the foregoing,Albert's third-:party complaint is di.smissed in its.entirety. The
Court has considered the parties \rema:irting arguments arid finds. same to be .rendered academic
or without rqerit.
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Accordingly, it is hereby
ORDERED that NEW YORK PROPERTY INSURANCE UNDERWRITING
ASSOCIATIONS' motions.to dismiss defendant/third-party plaintiffMADELINEALBERT's
third~party complaints are granted in their entirety (MS 001, 003 and 004).
This· constitutes the·. decision and order of the Court.
For Clerks useohly: Hon. nne J. Swern, J.S.C. MG _ _ Dated: 6/26/2025 MD _ _
Motion seq.# _ _ __
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