May v. Aetna Life & Casualty Co.

204 A.D.2d 1007, 614 N.Y.S.2d 955

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1994
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The second cause of action wherein plaintiff seeks to recover under a homeowner’s insurance policy must be dismissed because plaintiff failed to commence the action within the 24-month limitations period provided for in the policy. Such limitations periods are enforceable (see, Proc v Home Ins. Co., 17 NY2d 239, 245; Allen v Aetna Ins. Co., 54 AD2d 1072) absent facts giving rise to an estoppel, and the insurer is not "obligated to call plaintiff’s attention to the policy provision” (Blitman Constr. Corp. v Insurance Co., 66 NY2d 820, 823). The failure of defendants to comply with 11 NYCRR 216.6 (c) when they rejected plaintiff’s claim, without more, is not sufficient to estop them from relying upon the limitations period in the policy (cf., Rocanova v Equitable Life Assur. Socy., 83 NY2d 603). (Appeal from Order of Supreme Court, Erie County, Cosgrove, J.—Dismiss Complaint.) Present—Green, J. P., Law-ton, Fallon, Doerr and Boehm, JJ.