Opinion
2001-06645
Submitted February 19, 2002.
March 18, 2002.
In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered June 8, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.
John D. Randazzo, Pelham, N.Y., for appellant.
Speyer Perlberg, New York, N.Y. (J. Gregory Carlock of counsel), for respondents.
Before: DAVID S. RITTER, J.P., CORNELIUS J. O'BRIEN, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants established, prima facie, that the action was barred by the two-year limitations period contained in the insurance policy issued to the plaintiff (see, Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967; Proc v. Home Ins. Co., 17 N.Y.2d 239; Roberts v. New York Prop. Ins. Underwriting Assn., 253 A.D.2d 807; Costello v. Allstate Ins. Co., 230 A.D.2d 763; Ienaro v. Travelers Ind. Co., 86 A.D.2d 859, 860).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants either waived or were estopped from asserting the limitations defense. The defendants' communications regarding the investigation of the claim were insufficient to establish estoppel, and the plaintiff offered no evidence of other conduct by the defendants which lulled it into sleeping on its rights under the insurance policy (see, Gilbert Frank Corp. v. Federal Ins. Co., supra, at 968; Proc v. Home Ins. Co., supra, at 246; Grumman Corp. v. Travelers Ind. Co., 288 A.D.2d 344; Saxena v. New York Prop. Ins. Underwriting Assn., 232 A.D.2d 622, 623). Furthermore, the plaintiff offered "no evidence from which a clear manifestation of intent by [the] defendant[s] to relinquish the protection of the contractual limitations period could be reasonably inferred" (Gilbert Frank Corp. v. Federal Ins. Co., supra, at 968; see, Saxena v. New York Prop. Ins. Underwriting Assn., supra; Culinary Inst. of Am. v. Aetna Cas. Sur. Co., 151 A.D.2d 638, 639).
RITTER, J.P., O'BRIEN, CRANE and COZIER, JJ., concur.