Il Cambio, Inc. v. U.S. Fidelity & Guaranty Co.

Appellate Division of the Supreme Court of New York

Il Cambio, Inc. v. U.S. Fidelity & Guaranty Co.

82 A.D.3d 650, 920 N.Y.2d 305

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

DecidedMarch 29, 2011

StatusPublished

Cited by3 cases

This text of 82 A.D.3d 650 (Il Cambio, Inc. v. U.S. Fidelity & Guaranty 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.

Bluebook

Il Cambio, Inc. v. U.S. Fidelity & Guaranty Co., 82 A.D.3d 650, 920 N.Y.2d 305 (N.Y. Ct. App. 2011).

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Opinion

Plaintiffs are precluded from obtaining reimbursement on a [651]*651replacement cost claim since they “failed to satisfy the condition precedent of rebuilding” (DeLorenzo v Bac Agency, 256 AD2d 906, 907 [1998]; see D.R. Watson Holdings, LLC v Caliber One Indem. Co., 15 AD3d 969 [2005], lv dismissed 5 NY3d 842 [2005]; Alpha Auto Brokers v Continental Ins. Co., 286 AD2d 309, 310 [2001]). Plaintiffs have the burden of proving that the alleged loss is covered under the policy (see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339 [2003]), and the record establishes that there is no dispute that plaintiffs have never rebuilt or replaced the restaurant. Thus, their request for further discovery would not be productive (see Oates v Marino, 106 AD2d 289, 292 [1984]).

The complaint is also barred by the clear and unambiguous two-year suit limitations period in the policy (see Costello v Allstate Ins. Co., 230 AD2d 763 [1996]). Contrary to plaintiffs’ contention, defendant insurer did not waive, nor is it estopped from asserting, its contractual limitations defense based upon the fact of its payment of a portion of plaintiffs’ claim before the expiration of the limitations period (see New Medico Assoc. v Empire Blue Cross & Blue Shield, 267 AD2d 757, 759 [1999]).

Claims in negligence are governed by the three-year limitations period set forth in CPLR 214 (4) (see Tischler Roofing & Sheet Metal Works Co. v Sicolo Garage, 64 Misc 2d 825 [1970]). The record demonstrates that the date of the loss of the restaurant was September 11, 2001; plaintiff received payment in the sum of $3,400,000 from the insurance carrier and the claim was closed on December 19, 2001; plaintiffs representative was able to reopen the claim in March 2002; and plaintiff received an additional $181,288 on September 27, 2002. Since this action was brought on April 12, 2006, plaintiffs’ claim against their adjuster was properly dismissed as time-barred.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur — Tom, EJ., Sweeny, Catterson, Acosta and Manzanet-Daniels, JJ.

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Plaintiffs are precluded from obtaining reimbursement on a [651]*651replacement cost claim since they “failed to satisfy the condition precedent of rebuilding” (DeLorenzo v Bac Agency, 256 AD2d 906, 907 [1998]; see D.R. Watson Holdings, LLC v Caliber One Indem. Co., 15 AD3d 969 [2005], lv dismissed 5 NY3d 842 [2005]; Alpha Auto Brokers v Continental Ins. Co., 286 AD2d 309, 310 [2001]). Plaintiffs have the burden of proving that the alleged loss is covered under the policy (see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339 [2003]), and the record establishes that there is no dispute that plaintiffs have never rebuilt or replaced the restaurant. Thus, their request for further discovery would not be productive (see Oates v Marino, 106 AD2d 289, 292 [1984]).

The complaint is also barred by the clear and unambiguous two-year suit limitations period in the policy (see Costello v Allstate Ins. Co., 230 AD2d 763 [1996]). Contrary to plaintiffs’ contention, defendant insurer did not waive, nor is it estopped from asserting, its contractual limitations defense based upon the fact of its payment of a portion of plaintiffs’ claim before the expiration of the limitations period (see New Medico Assoc. v Empire Blue Cross & Blue Shield, 267 AD2d 757, 759 [1999]).

Claims in negligence are governed by the three-year limitations period set forth in CPLR 214 (4) (see Tischler Roofing & Sheet Metal Works Co. v Sicolo Garage, 64 Misc 2d 825 [1970]). The record demonstrates that the date of the loss of the restaurant was September 11, 2001; plaintiff received payment in the sum of $3,400,000 from the insurance carrier and the claim was closed on December 19, 2001; plaintiffs representative was able to reopen the claim in March 2002; and plaintiff received an additional $181,288 on September 27, 2002. Since this action was brought on April 12, 2006, plaintiffs’ claim against their adjuster was properly dismissed as time-barred.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur — Tom, EJ., Sweeny, Catterson, Acosta and Manzanet-Daniels, JJ.

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Bluebook (online)

82 A.D.3d 650, 920 N.Y.2d 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/il-cambio-inc-v-us-fidelity-guaranty-co-nyappdiv-2011.

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