Employers' Fire Ins. Co. v. Klemons
| Decision Date | 22 July 1996 |
| Citation | 229 A.D.2d 513,645 N.Y.S.2d 849 |
| Parties | EMPLOYERS' FIRE INSURANCE COMPANY, Respondent, v. Gary KLEMONS, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Davoli & Vesnaver, Rockville Centre (Henry W. Davoli, Jr., of counsel), for appellants.
Tell, Cheser & Breitbart, L.L.P., New York City (Kenneth R. Feit, of counsel), for respondent.
Before O'BRIEN, J.P., and GOLDSTEIN, FLORIO and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action for a judgment declaring that in the event the defendants sued to recover under a policy of insurance, their action would be time-barred, and that the plaintiff insurance carrier was not liable because the defendants violated certain provisions of the policy, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Schmidt, J.), entered July 10, 1995, as granted that branch of the plaintiff's motion which was for summary judgment declaring that in the event the defendants sued to recover on their claim under the policy, their action would be time-barred.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiff's motion which was for summary judgment declaring that in the event the defendants sued to recover on their claim under the policy, their action would be time-barred, is denied, and the complaint and any counterclaims for declaratory relief are dismissed.
The defendants obtained insurance from the plaintiff for a boat. In August 1993 the boat was allegedly stolen and the defendants made a claim under the policy. After an investigation, the defendants demanded that the plaintiff reveal its intentions as to the policy. The plaintiff responded by commencing the instant action for a judgment declaring that if the defendants sued to recover on the claim, their action would be time-barred pursuant to a one-year period of limitations set forth in the policy, and that it was not liable because the defendants violated certain provisions of the policy. The defendants counterclaimed for a judgment declaring that they complied with those policy provisions and to recover punitive damages for "malicious and intentional acts". In the order appealed from, the Supreme Court granted those branches of the plaintiff's motion which were for summary judgment (1) declaring that in the event the defendants sued to recover on their claim under the policy, the action would be time-barred, and (2) dismissing the counterclaim for punitive damages for failure to state a cause of action. The propriety of the dismissal of...
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