Opinion
2014-04-16
Stephen VACCARO, et al., appellants, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, respondent, et al., defendant.
Balfe & Holland, P.C., Melville, N.Y. (Kevin E. Balfe of counsel), for appellants. Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), for respondent.
Balfe & Holland, P.C., Melville, N.Y. (Kevin E. Balfe of counsel), for appellants. Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), for respondent.
In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated May 21, 2012, which granted the motion of the defendant New York Central Mutual Fire Insurance Company for summary judgment dismissing the complaint insofar as asserted against it and denied their cross motion for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiffs' contentions, the provision in the subject insurance policy requiring that any action against the defendant New York Central Mutual Fire Insurance Company (hereinafter the respondent) be commenced within two years after the date of loss was neither unreasonable nor ambiguous. Accordingly, the Supreme Court properly determined that this provision was valid and enforceable ( see e.g. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512;Blitman Constr. Corp. v. Insurance Co. of N. Am., 66 N.Y.2d 820, 498 N.Y.S.2d 349, 489 N.E.2d 236;Il Cambio, Inc. v. U.S. Fid. & Guaranty Co., 82 A.D.3d 650, 651, 920 N.Y.S.2d 305;Klawiter v. CGU/OneBeacon Ins. Group, 27 A.D.3d 1155, 810 N.Y.S.2d 756;Schachter v. Royal Ins. Co. of Am., 21 A.D.3d 1024, 801 N.Y.S.2d 372;Costello v. Allstate Ins. Co., 230 A.D.2d 763, 646 N.Y.S.2d 695).
The respondent established its prima facie entitlement to judgment as a matter of law by submitting the subject insurance policy and the summons and complaint, which demonstrated that the plaintiffs did not commence this action until more than two years after the date of their loss. Since, in opposition, the plaintiffs failed to raise a triable issue of fact regarding their claim of estoppel, the Supreme Court properly granted the respondent's motion for summary judgment dismissing the complaint insofar as asserted against it ( see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d at 968, 525 N.Y.S.2d 793, 520 N.E.2d 512;Enright v. Nationwide Ins., 295 A.D.2d 980, 981, 743 N.Y.S.2d 786;Grumman Corp. v. Travelers Indem. Co., 288 A.D.2d 344, 733 N.Y.S.2d 464;Gongolewski v. Travelers Ins. Co., 252 A.D.2d 569, 569–570, 675 N.Y.S.2d 299) and properly denied the plaintiffs' cross motion for summary judgment on the complaint. MASTRO, J.P., BALKIN, MILLER and LASALLE, JJ., concur.