Benatovich v. Propis Agency, Inc.

Decision Date02 February 1996
CourtNew York Supreme Court — Appellate Division
PartiesSheldon B. BENATOVICH, Respondent, v. PROPIS AGENCY, INC., The Travelers Insurance Companies, Appellants, and Adema Heating & Air Conditioning, Inc., Respondent.

Appeals from Order of Supreme Court, Erie County; Gorski, Judge.

Lustig and Brown by Colleen Murphy, Buffalo, for Appellant--Propis Agency, Inc.

Hodgson, Russ, Andrews, Woods and Goodyear, LLP by Hugh Russ, Buffalo, for Appellant--The Travelers Insurance Companies.

Sullivan, Benatovich, Oliverio & Trimboli by Christopher Belter, Buffalo, for Respondent.

Brown & Kelly, LLP by Noelle Kowalczyk, Buffalo, for Respondent--Adema Heating & Air Conditioning, Inc.

Before DENMAN, P.J., and GREEN, WESLEY, BALIO and BOEHM, JJ.

MEMORANDUM:

Plaintiff was insured under a homeowner's policy issued by defendant Travelers and procured through defendant Propis Agency. In May 1991, plaintiff made a claim for property damage and loss of use resulting from the allegedly negligent installation of a central air conditioning system by defendant Adema. Travelers initially covered the loss by paying for two clean-ups and hotel stays for plaintiff and his family. Plaintiff commenced this action in May 1994, approximately three years after the loss. As against Propis and Travelers, plaintiff seeks to recover for damages allegedly not rectified by the clean-ups or further caused as a result of the clean-ups.

Propis and Travelers appeal from an order that denied their respective motions to dismiss plaintiff's complaint as untimely. Supreme Court should have granted those motions based upon plaintiff's failure to commence the action within the two-year limitations period of the policy (see, Galligan v. Royal Globe Ins. Co., 119 A.D.2d 987, 500 N.Y.S.2d 993; Van Hoesen v. Pennsylvania Millers Mut. Ins. Co., 86 A.D.2d 733, 447 N.Y.S.2d 47). Plaintiff contends that he never received the policy and thus never agreed to the two-year limitations period. "That argument is devoid of merit because [plaintiff's] entire claim is premised on the existence of that policy" (Galaska v. State Farm Mut. Auto. Ins. Co., 177 A.D.2d 947, 948, 577 N.Y.S.2d 988; see, Maurice v. Allstate Ins. Co., 173 A.D.2d 793, 570 N.Y.S.2d 654). "Neither delivery nor actual possession by the insured is essential to the completion of a contract of insurance" (Maurice v. Allstate Ins. Co., supra, at 793, 570 N.Y.S.2d 654, quoting 68 NYJur2d, Insurance, § 652, at 755; see, Matter of Metropolitan Prop. & Liab. Ins. Co. [Traphagen], 199 A.D.2d 915, 916, 606 N.Y.S.2d 62). Additionally, the court should have granted Propis' motion for summary judgment on the ground...

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  • M.V.B. Collision Inc. v. Allstate Ins. Co.
    • United States
    • New York District Court
    • March 15, 2017
    ...787, 687 N.Y.S.2d 768 ; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915, 655 N.Y.S.2d 210 ; Benatovich v. Propis Agency, 224 A.D.2d 998, 998–999, 637 N.Y.S.2d 551 )."In Benatovich v. Propis Agency, Inc., 224 A.D.2d 998, 637 N.Y.S.2d 551 (4th Dept.1996), the plaintiff obtain......
  • B&A Demolition & Removal, Inc. v. Markel Ins. Co.
    • United States
    • U.S. District Court — Eastern District of New York
    • April 18, 2013
    ...nor actual possession by the insured is essential to the completion of an insurance contract. See Benatovich v. Propis Agency, Inc., 224 A.D.2d 998, 637 N.Y.S.2d 551 (4th Dep't 1996); Maurice v. Allstate Ins. Co., 173 A.D.2d 793, 570 N.Y.S.2d 654 (2d Dep't 1991). The only circumstance under......
  • O'Keefe v. Allstate Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • December 13, 2011
    ...787, 687 N.Y.S.2d 768; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915, 655 N.Y.S.2d 210; Benatovich v. Propis Agency, 224 A.D.2d 998, 998–999, 637 N.Y.S.2d 551). [934 N.Y.S.2d 483] With respect to the complaint insofar as asserted against the insurer, the third cause of ac......
  • v. Allstate Ins. Co.
    • United States
    • New York District Court
    • March 15, 2017
    ...783, 787, 687 N.Y.S.2d 768; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915, 655 N.Y.S.2d 210; Benatovich v. Propis Agency, 224 AD2d 998, 998-999, 637 N.Y.S.2d 551)." In Benatovich v. Propis Agency, Inc., 224 AD2d 998, 637 NYS2d 551 (4th Dept. 1996), the plaintiff obtained a ......
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