Sealey v. Nat'l Gen. Ins. Co.
| Decision Date | 10 February 2022 |
| Docket Number | Index 506107/2020 |
| Parties | CLOURINE SEALEY, Plaintiff, v. NATIONAL GENERAL INSURANCE COMPANY, Defendants, |
| Court | New York Supreme Court |
MS #1 MS #2 and MS #3
DECISION AND ORDER
The following papers numbered on this motion:
NYSCEF Doc Numbers
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed..............
Answering Affidavit (Affirmation)............
41-44, 46
Reply Affidavit (Affirmation)..........
Supplemental Affidavit (Affirmation)..........
47
Pleadings -Exhibits...........
5-9, 19-21, 26-38, 49
Stipulations -Minutes.........
Filed Papers.........
This action arises out of an insurance coverage dispute from alleged property damage to Plaintiff's property located at 2018 Schenectady Avenue, Brooklyn, NY 11203. The alleged loss occurred on March 15, 2018.
On March 11, 2020, Plaintiff filed this action for breach of insurance contract because of the denial of her property insurance claim. Plaintiff originally named NATIONAL GENERAL INSURANCE COMPANY (hereinafter NATIONAL) as Defendant.
On August 28, 2021, Defendant NATIONAL moved for dismissal on the basis that no contract of insurance existed between Plaintiff and NATIONAL, but rather the contract of insurance existed between Plaintiff and MIC GENERAL INSURANCE CORPORATION.
On November 12, 2020, Plaintiff filed an Amended Complaint substituting MIC GENERAL INSURANCE CORPORATION (hereinafter MIC) as Defendant in place of NATIONAL. Service on MIC was effectuated through the New York Secretary of State on Sally Hall, who was also the agent for service on NATIONAL.
On December 14, 2020, Defendant MIC filed a motion to dismiss Plaintiff's Amended Complaint. Plaintiff cross-moved for leave to amend the Complaint and correct the caption.
Defendant MIC argues that the action should be dismissed because its policy with Plaintiff requires that suits be brought within two years after the loss and the Amended Complaint against it was filed more than two years after the loss.
Plaintiff argues that Defendant MIC's motion should be denied as the action was timely commenced pursuant to CPLR §304 and the Amended Complaint was timely served pursuant to CPLR §306-b. Plaintiff's argument misconstrues the issue.
It is clear that the Amended Complaint was filed and served within the six year statute of limitations for breach of contract and that it was an amendment as of right "since the defendant's motion to dismiss the complaint, which extended [their] time to answer the complaint, also extended the plaintiff's time to amend the complaint" (Johnson v. Spence, 286 A.D.2d 481, 483 [2d Dept 2001]; see also CPLR 3025[a]).
While this demonstrates that that part of Plaintiff's motion for leave to serve its Amended Complaint is unnecessary, it does not answer MIC's argument that the Amended Complaint was filed after the two-year period permitted under the policy. The two-year period cited by MIC is a limitation on commencing an action contained in the insurance policy, not a statute of limitations contained in the CPLR.
The case was commenced against MIC when it was served with the supplemental summons and Amended Complaint (see Trioche v. Warner Amex Satellite Entertainment Co., 48 A.D.3d 671, [2d Dept 2008]), which was more than two years after the claimed loss.
"Although a court may allow amendment of a summons to correct the name of a defendant pursuant to CPLR 305(c), such remedy is not available where a plaintiff seeks to substitute a defendant who has not been properly served" (Fadlalla v. Yankee Trails World Tours, 173 A.D.3d 1538, 1540 [3d Dept 2019]). Here, MIC was not served with the original Complaint. NATIONAL is an existing corporation distinct from MIC, thus the Amended Complaint does not merely correct a name but substitutes one corporation for another.
The question before the Court, therefore, is whether the Amended Complaint can be related back to the original Complaint against NATIONAL to satisfy the two-year limitation provision of the policy.
The relation back doctrine of CPLR 203(c) has been applied to insurance policy limitation provisions (see Doe v HMO-CNY, 14 A.D.3d 102 [4th Dept 2004]).
Because the Amended Complaint was untimely, Plaintiff is required to relate back to the original Complaint by establishing that "(1) the claims arose out of the same conduct transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement; and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff in originally failing to identify all the proper pa...
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