Botach Mgmt. Grp. v. Gurash

• Decision Date: 13 April 2016
• Docket Number: 2014-02667, Index No. 59470/13.
• Citation: 138 A.D.3d 771,2016 N.Y. Slip Op. 02771,31 N.Y.S.3d 80
• Parties: BOTACH MANAGEMENT GROUP, etc., appellant, v. John GURASH, et al., defendants, First Specialty Insurance Corporation, respondent.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 771

31 N.Y.S.3d 80

2016 N.Y. Slip Op. 02771

BOTACH MANAGEMENT GROUP, etc., appellant,

v.John GURASH, et al., defendants, First Specialty Insurance Corporation, respondent.

2014-02667, Index No. 59470/13.

Supreme Court, Appellate Division, Second Department, New York.

April 13, 2016.

Bronstein, Gewirtz & Grossman, New York, N.Y. (Edward N. Gewirtz of counsel), for appellant.

DLA Piper LLP (US), New York, N.Y. (Aidan M. McCormack and R. Brian Seibert of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), dated February 11, 2014, which granted the motion of the defendant First Specialty Insurance Corporation pursuant to CPLR 3211 to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The defendant First Specialty Insurance Corporation (hereinafter FSIC) insured certain real property owned by the plaintiff Botach Management Group (hereinafter Botach) and located in California. Pursuant to the insurance policy, any legal proceedings against FSIC in relation to such coverage had to be commenced in New York within twelve months of the date of damage/loss. After the property allegedly was damaged over a period of time in 2010, Botach filed a claim on the policy and FSIC denied the claim in January 2011. Botach then commenced an action against FSIC in California (hereinafter the California action). The complaint in the California action alleged that the last damage to the property occurred in September 2010. FSIC moved, based on the forum selection clause, to stay all proceedings in the California action, and the Superior Court of California granted the motion.

Botach then commenced this action in the Supreme Court, Westchester County, in June 2013. The complaint in this action alleged that the last damage to the property occurred in December 2010. FSIC moved to dismiss the New York action, inter alia, as time-barred, and in an order dated February 11, 2014, the Supreme Court granted the motion. After the Supreme Court granted the motion to dismiss this action, the Superior Court of California dismissed the California action with prejudice. Botach appeals from the order dated February 11, 2014.

“A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211(a)(1) has the burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim’ ” (Sullivan v. State of New York, 34 A.D.3d 443, 445, 824 N.Y.S.2d 135, quoting Nevin v. Laclede Professional Prods., 273 A.D.2d 453, 453, 711 N.Y.S.2d 735 ; see GuideOne Specialty Ins. Co. v.

Admiral Ins.

Co., 57 A.D.3d 611, 613, 869 N.Y.S.2d 565 ; Cohen v. Nassau Educators Fed. Credit Union, 37 A.D.3d 751, 752, 832 N.Y.S.2d 50 ). In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable limitations period, “ ‘a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired’ ” (QK Healthcare, Inc. v. InSource, Inc., 108 A.D.3d 56, 65, 965 N.Y.S.2d 133, quoting A.F. Rockland Plumbing Supply Corp. v. Hudson Shore Associated Ltd. Partnership, 96 A.D.3d 885, 886, 948 N.Y.S.2d 79 ; see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653, 990 N.Y.S.2d 223 ).

Here, the documentary evidence submitted by FSIC in support of its motion conclusively established that the instant action was barred because it was commenced after the expiration of the one-year limitation period contained in the subject insurance policy (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967–968, 525 N.Y.S.2d 793, 520 N.E.2d 512 ; Neary v. Nationwide Mut. Fire Ins. Co., 17 A.D.3d 331, 791 N.Y.S.2d 840 ). Thereupon, the burden shifted to Botach to raise a question of fact as to whether the limitations period “has been tolled or was otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendant” (QK Healthcare, Inc. v. InSource, Inc., 108 A.D.3d at 65, 965 N.Y.S.2d 133 ; see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d at 653, 990 N.Y.S.2d 223 ).

In opposition to FSIC's motion, Botach argued that FSIC should be equitably estopped from asserting the policy's limitations period as a defense because it engaged in a course of conduct that lulled Botach into inactivity based on a belief that its claim would...