1840 Concourse Assoc., LP v Praetorian Ins. Co.

1840 Concourse Assoc., LP v Praetorian Ins. Co. 2011 NY Slip Op 08468 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Tom, J.P., Saxe, Sweeney, Richter, Manzanet-Daniels, JJ.
6114 602551/09

[*1]1840 Concourse Associates, LP, Plaintiff-Appellant,

v

Praetorian Insurance Company, etc., Defendant-Respondent.




Weg and Myers, P.C., New York (Joshua L. Mallin of counsel),
for appellant.
Abrams, Gorelick, Friedman & Jacobson, P.C., New York
(Michael E. Gorelick of counsel), for respondent.

Order, Supreme Court, New York County (James A. Yates, J.), entered December 7, 2010, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

In this action for breach of contract based on a commercial property policy issued by defendant insurer to plaintiff property owner, defendant established its entitlement to judgment as a matter of law by showing that plaintiff commenced this action after expiration of the two-year limitations period contained in the policy (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967-968 [1988]). In opposition, plaintiff failed to raise a triable issue of fact as to whether the action was governed by the six-year statute of limitations set forth in CPLR 213 (id.). Moreover, plaintiff failed to raise a triable issue of fact as to waiver or estoppel (id.).

Because plaintiff's claim is barred by the applicable two-year statute of limitations, we decline to consider any remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK