| Dimmick v New York Prop. Ins. Underwriting Assn. |
| 2008 NY Slip Op 09745 [57 AD3d 602] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mNadia Dimmick, Respondent, v New York Property InsuranceUnderwriting Association, Appellant. |
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In an action to recover damages for breach of contract, the defendant appeals from an order of theSupreme Court, Kings County (Ruchelsman, J.), dated January 16, 2008, which, inter alia, granted theplaintiff's motion to restore the case to the trial calendar and denied that branch of its cross motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion to restore the caseto the trial calendar is denied, that branch of the defendant's cross motion which was to dismiss thecomplaint pursuant to CPLR 3211 (a) (5) as time-barred is granted, and the cross motion is otherwisedenied an academic.
The defendant issued a policy of insurance which, among other things, insured the plaintiff'scovered property against loss from fire. The policy contained a provision that an action against thedefendant had to be commenced within two years of the date of loss. The plaintiff's property allegedlysustained fire damage on July 11, 1999. The plaintiff, however, failed to commence this action until July31, 2001, by the filing of a summons with notice.
Parties to a contract may agree to limit the period of time within which an action must becommenced to a shorter period than that provided by the applicable statute of limitations (seeCPLR 201; Joseph v Insureco, Inc., 25AD3d 764, 765 [2006]; C.D. City vMaryland Cas. Co., 4 AD3d 382, 383 [2004]; Matter of Incorporated Vil. of Saltaire vZagata, 280 AD2d 547 [2001]). Here, the plaintiff failed to comply with the contractual limitationsperiod under the policy. Further, in her papers submitted in opposition to the defendant's motion, interalia, to dismiss the complaint pursuant to CPLR [*2]3211 (a) (5) astime-barred, the plaintiff failed to demonstrate that the defendant engaged in any conduct during thelimitations period that induced her to postpone bringing suit (see Halim v State Farm Fire & Cas. Co., 31 AD3d 710, 711 [2006]; Schachter v Royal Ins. Co. of Am., 21AD3d 1024 [2005]; Neary vNationwide Mut. Fire Ins. Co., 17 AD3d 331 [2005]; Minichello v Northern Assur. Co.of Am., 304 AD2d 731 [2003]). Accordingly, the Supreme Court should have granted that branchof the defendant's motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Skelos, Balkin and Belen, JJ.,concur.