Gilbert Frank Corp. v. Federal Ins. Co.

• Decision Date: 04 February 1988
• Citation: 70 N.Y.2d 966,525 N.Y.S.2d 793,520 N.E.2d 512
• Parties: , 520 N.E.2d 512 GILBERT FRANK CORPORATION, Respondent, v. FEDERAL INSURANCE COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 793

525 N.Y.S.2d 793

70 N.Y.2d 966, 520 N.E.2d 512

GILBERT FRANK CORPORATION, Respondent, v. FEDERAL INSURANCE COMPANY, Appellant.

Court of Appeals of New York.

Feb. 4, 1988.

Kenneth R. Feit and Solomon M. Cheser, New York City, for appellant.

Dennis T. D'Antonio and Frank A. Weg, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 129 A.D.2d 414, 514 N.Y.S.2d 215, should be reversed, with costs, defendant's motion for summary judgment granted, and the question certified answered in the negative.

This court has repeatedly held that in order to obtain summary judgment, movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718, supra ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718, supra ).

Here, defendant insurer, by citing the insurance policy's 12-month limitations period, satisfied its burden of producing evidence which, if uncontroverted, is sufficient to warrant judgment in its favor as a matter of law. Plaintiff, on the other hand, has not met its burden of demonstrating the existence of any material triable issue of fact. The evidence in the record shows that subsequent to the expiration of the contractual limitations period defendant continued to investigate plaintiff's claim. There were four meetings between plaintiff's chief financial officer and one of defendant's representatives, and a number of telephone contacts between the parties. Eventually, plaintiff was offered $8,000 "without prejudice" in full satisfaction of its stated claim of over $100,000--an offer which plaintiff rejected. No other evidence was presented in support of plaintiff's claim of waiver and/or estoppel.

Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel ( see, Blitman Constr. Corp. v. Insurance Co., 66 N.Y.2d 820, 823, 498 N.Y.S.2d 349, 489 N.E.2d 236; Kaufman v. Republic Ins. Co., 35 N.Y.2d 867, 868, 363...