| John v State Farm Mut. Auto. Ins. Co. |
| 2014 NY Slip Op 02905 [116 AD3d 1010] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Dyrick John, Respondent, v State Farm MutualAutomobile Insurance Company, Appellant. |
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In an action, inter alia, to recover damages for breach of an insurance policy, thedefendant appeals from an order of the Supreme Court, Kings County (Bunyan, J.), datedJanuary 30, 2013, which denied its motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
On or about February 1, 2010, a vehicle owned by the plaintiff was stolen. Thevehicle was insured by a policy of insurance issued by the defendant. After the defendantdenied coverage for the claim, the plaintiff commenced this action on or about June 27,2011, inter alia, to recover damages for breach of the subject insurance policy.Thereafter, the defendant moved for summary judgment dismissing the complaint basedupon the plaintiff's failure to timely commence this action under the terms of theinsurance policy. In an order dated January 30, 2013, the Supreme Court denied thedefendant's motion.
"The parties to a contract may agree to limit the period of time within which anaction must be commenced to a period shorter than that provided by the applicablestatute of limitations. Absent proof that the contract is one of adhesion or the product ofoverreaching, or that [the] altered period is unreasonably short, the abbreviated period oflimitation will be enforced" (Jamaica Hosp. Med. Ctr. v Carrier Corp., 5 AD3d 442, 443[2004] [internal quotation marks and citations omitted]; see Hunt v Raymour &Flanigan, 105 AD3d 1005, 1006 [2013]; Timberline Elec. Supply Corp. vInsurance Co. of N. Am., 72 AD2d 905, 906 [1979], affd 52 NY2d 793[1980]). "Where the party against which an abbreviated Statute of Limitations is soughtto be enforced does not demonstrate duress, fraud, or misrepresentation in regard to itsagreement to the shortened period, it is assumed that the term was voluntarily agreed to"(Matter of Incorporated Vil. of Saltaire v Zagata, 280 AD2d 547, 548 [2001];see Krohn v Felix Indus., 226 AD2d 506 [1996]; Wayne Drilling & Blastingv Felix Indus., 129 AD2d 633, 634 [1987]).
Here, the defendant established its prima facie entitlement to judgment as a matter oflaw by submitting, among other things, the subject insurance policy, which demonstratedthat the one-year limitations period found in the insurance policy expired prior to thecommencement of this [*2]action (see Gilbert FrankCorp. v Federal Ins. Co., 70 NY2d 966, 967-968 [1988]; 1840 Concourse Assoc., LP vPraetorian Ins. Co., 89 AD3d 592 [2011]; Minichello v Northern Assur. Co.of Am., 304 AD2d 731, 732 [2003]). In opposition, the plaintiff failed to raise atriable issue of fact (see Blitman Constr. Corp. v Insurance Co. of N. Am., 66NY2d 820, 822 [1985]; Jamaica Hosp. Med. Ctr. v Carrier Corp., 5 AD3d at443; cf. Executive Plaza, LLC vPeerless Ins. Co., 22 NY3d 511 [2014]). Specifically, the plaintiff's contentionbefore the Supreme Court that the defendant should be estopped from asserting thelimitations period in the insurance policy is without merit. The plaintiff did not offerevidence that the defendant's conduct lulled him into inactivity based on a belief that hisclaim would ultimately be processed, or that he was "induced by fraud, misrepresentationor deception to refrain from commencing a timely action" (Minichello v NorthernAssur. Co. of Am., 304 AD2d at 732 [internal quotation marks omitted]; see Garcia v Peterson, 32AD3d 992, 993 [2006]; Brown v Royal Ins. Co. of Am., 210 AD2d 279[1994]).
Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint. Balkin, J.P., Dickerson, Roman and Miller,JJ., concur.