Opinion
2013-12-27
Jamie LOBELLO, Plaintiff–Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant–Appellant.
Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered April 12, 2012. The order, inter alia, denied that part of the motion of defendant to dismiss the complaint with respect to the first cause of action. Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for Defendant–Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (James J. Gascon of Counsel), for Plaintiff–Respondent.
Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered April 12, 2012. The order, inter alia, denied that part of the motion of defendant to dismiss the complaint with respect to the first cause of action.
Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for Defendant–Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (James J. Gascon of Counsel), for Plaintiff–Respondent.
MEMORANDUM:
Plaintiff commenced this action seeking, inter alia, a declaration that the insurance policy issued by defendant, New York Central Mutual Fire Insurance Company (NYCM), provided coverage for the subject loss. Thereafter, NYCM moved to dismiss the complaint on the ground that the action was not timely commenced. NYCM appeals from that part of the order denying without prejudice its motion with respect to the first cause of action. Initially, we note that, contrary to plaintiff's contention, the order is appealable despite the fact that Supreme Court denied in part NYCM's motion without prejudice to renew ( see Gruet v. Care Free Hous. Div. of Kenn–Schl Enters., 305 A.D.2d 1060, 1060, 759 N.Y.S.2d 276). Regarding the merits, we conclude that the motion “was properly denied as premature in light of the incomplete state of discovery, including the lack of any depositions” (Ali v. Effron, 106 A.D.3d 560, 560, 967 N.Y.S.2d 11). Plaintiff is entitled to discovery on, inter alia, whether NYCM should be estopped from invoking the statute of limitations defense. Plaintiff failed to preserve for our review his alternative contention that the date of loss under the policy is not the date that the theft occurred, but instead the date that the cause of action against NYCM accrued ( see Fabozzi v. Lexington Ins. Co., 601 F.3d 88; cf. Klawiter v. CGU/OneBeacon Ins. Group, 27 A.D.3d 1155, 810 N.Y.S.2d 756; Costello v. Allstate Ins. Co., 230 A.D.2d 763, 646 N.Y.S.2d 695). Thus, we need not address that issue at this stage of the proceedings.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. CENTRA, J.P., PERADOTTO, CARNI, and LINDLEY, JJ., concur.