Van Hoesen v. Pennsylvania Millers Mut. Ins. Co.

• Decision Date: 28 January 1982
• Citation: 447 N.Y.S.2d 47,86 A.D.2d 733
• Parties: Rubie VAN HOESEN, Appellant, v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY et al., Respondents, and Daniel J. Hogan et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 47

447 N.Y.S.2d 47

86 A.D.2d 733

Rubie VAN HOESEN, Appellant, v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY et al., Respondents and Daniel J. Hogan et al., Defendants.

Supreme Court, Appellate Division Third Department.

Jan. 28, 1982.

George King, Albany, for appellant.

Bouck, Holloway & Kiernan, Albany (Edward R. Broton, Albany, of counsel), for respondent Pennsylvania Millers Mut. Ins. Co.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (Randall J. Ezick, Albany, of counsel), for respondent Harold Holt Associates, Inc.

Before MAHONEY, P. J., and MAIN, MIKOLL, YESAWICH and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered November 28, 1980 in Albany County, which dismissed the complaint as to defendants Pennsylvania Millers Mutual Insurance Company and Harold Holt Associates, Inc.

In an action pleading nine separate causes of action against several parties, defendants Pennsylvania Millers Mutual Insurance Company (Millers) and Harold Holt Associates, Inc. (Holt) successfully moved for dismissal of the complaint as against them on the grounds that the two-year limitation of time within which to commence an action as set forth in the insurance contract had expired. On this appeal, plaintiff argues two bases for reversal. First, she contends that the existence of good faith negotiations estops the interposing of the defense of the two-year contractual time limitation. Second, she contends that the contractual statute of limitations is unconstitutional. She submits that these present triable issues of fact preclude summary judgment.

The order should be affirmed. Special Term correctly determined that the two-year policy limitation, imposed pursuant to section 168 (subd. 5) of the Insurance Law, is constitutional and controlling herein (see CPLR 201; see, also, Proc v. Home Ins. Co., 17 N.Y.2d 239, 270 N.Y.S.2d 412, 217 N.E.2d 136). Nor do we find any support for plaintiff's further contention that summary judgment was improvidently granted because the misleading conduct of defendants required that the doctrine of estoppel be imposed. The supporting affidavit of plaintiff's attorney is conclusory and virtually devoid of evidentiary facts (Kaufman v. Republic Ins. Co., 35 N.Y.2d 867, 363 N.Y.S.2d 951, 323 N.E.2d 189). The mere fact that settlement negotiations were conducted does not warrant an estoppel (see Proc v. Home Ins. Co., 17 N.Y.2d 239, 245-246, 270 N.Y.S.2d 412, 217 N.E.2d 136, supra ; Siegel, New York Practice, §...