Graziane v. Firemen's Insurance

63 A.D.2d 1087, 406 N.Y.S.2d 169, 1978 N.Y. App. Div. LEXIS 12185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1978
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered April 25, 1977 in “ Montgomery County, which granted a motion by the defendant for summary judgment. A barn and its contents owned by plaintiff were destroyed by fire on September 7, 1974. Defendants had issued several policies of insurance covering the claimed loss. The instant action to recover for the loss was commenced on April 26, 1976. Defendants, in their answer, asserted, among other things, that the action was not commenced within one year as required by the policies. Special Term granted defendants’ motion for summary judgment and denied plaintiff’s motion for reargument. This appeal ensued. Plaintiff contends that defendants have waived the right to plead the one-year limitation because of certain conduct on their part. Specifically, plaintiff contends that such conduct consisted of defendants’ failure to supply plaintiff with blank proof of loss forms for four months; defendants’ failure to examine plaintiff pursuant to the policies until June 25, 1975; and defendants’ examination of plaintiff before trial on September 28, 1976. We find no merit to any of these contentions. An examination of the record in its entirety fails to reveal any misleading statements made by defendants or that plaintiff was lulled into inactivity by conduct which plaintiff believed indicated that the time limitation would not be invoked (Fotochrome, Inc. v American Ins. Co., 26 AD2d 634, affd 23 NY2d 889). The record demonstrates that when defendants sent proof of loss forms to plaintiff they specifically reserved all rights and defenses in the matter and that the June examination was consistent with the terms of the policy. Finally, the examination before trial on September 28, 1976 in no way delayed plaintiff nor affirmed any hope that the limitation period would not be enforced. The order, therefore, should be affirmed (Proc v Home Ins. Co., 17 NY2d 239; K & T Dev. Co. v Quincey Mut. Fire Ins. Co., 54 AD2d 753). Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Mikoll, JJ., concur.