Hon v Allstate Indem. Co.
Annotate this Case
Download PDF
Hon v Allstate Indem. Co. 2011 NY Slip Op 32977(U) October 18, 2011 Supreme Court, New York County Docket Number: 603182/09 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1111012011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Justice Index Number : 603182/2009 INDEX NO. HON, D.O., JOHN MOTION DATE VS. ALLSTATE INDEMNITY COMPANY MOTION SEQ. NO. SEQUENCE NUMBER : 002 MOTION CAI.. N O . REARGUMENT/RECONSIDERATlON this motion to/for PAPERS NUMBERED -- Notice of Motion/ Order to Show Cause - Affldavits - Exhibits ... Answering Affidavits - Exhibits Repiylng Affidavlta Cross-Motion: Yes 'E No FILED NOV 09 2011 NEW YORK COUNTY CLERK'S OFFICE Check one: n FINAL DISPOSITION Check if appropriate: h O N - F I N A L DISPOSITION a DO NOT POST 0 SUBMIT ORDER/ JUDG. 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 11 _ _ _ - - _ _ _ _ _ _ - - - - - _ _ _ _ _ _ _ _ l f _ _ _ _ _ _ _ _ _ _ _ _ X JOHN HON, D . O . , Index No. 603182/09 Plaintiff, - against - FILED ALLSTATE INDEMNITY COMPANY and A NEW YORK HON. JOAN A . MADDEN, J. : COUNTY CLERKS OFFICE In this action for coverage under a homeowners insurance policy, defendants Allstate Indemnity Company and Allstate Insurance Company (collectively, Allstate ) move, for renewal and/or reargument of their prior motion seeking to dismiss the complaint as barred by the limitations period contained in the policy. Plaintiff, John Won, D.O., opposes t h e motion. BACKGROUND Plaintiff commenced this action to recover under a Deluxe Homeowners-Primary Residence Policy, Policy No. 90326 8383, issued by Allstate. The policy insured plaintiff s residence located at 132-07 4 l S t Road, Flushing, New York (the insured premises ), for the period J u l y 16, 2003 to July 16, 2004, and outlined the losses that were covered and excluded thereunder. Section 1, 7 1 of the policy states that any action against I2 Allstate must be brought within two years after the inception of loss or damage (Policy, Not of Mot, Exh A, p . 21). On February 12, 2004, the insured premises sustained damages as a result of ongoing excavation work at an adjoining premises. Plaintiff submitted a written claim of loss to Allstate, which [* 3] undertook an investigation of the loss. By letter dated March 16, 2004, Allstate disclaimed coverage on the ground that the loss was excluded under certain policy exclusions. In October 2009, plaintiff commenced this action seeking to recover damages from Allstate for disclaiming coverage for the loss. The complaint alleges causes of action f o r breach of the insurance policy (first cause of action); unjust enrichment (second cause of action); breach of the implied covenant of good faith (third cause of action); and unfair claim settlement practices (fourth cause of action). Allstate's answer includes general denials of the allegations in the complaint and numerous affirmative defenses, including that plaintiff did not commence the action within the policy's two-year limitations period. Allstate moved to dismiss the action as untimely. By decision and order dated October 15, 2010 ( " t h e original decision"), the court denied the motion, finding that while the shortened statute of limitations periods, like the one in the policy, are generally enforceable, that "the record raises triable issues of fact as to whether Allstate may avail itself of the benefit of the shortened limitations period, as opposed to the general six-year Statute of Limitations for an action upon contract applies" (original decision, at 4). In reaching this conclusion, the court relied on an affidavit from plaintiff indicating that he did not receive a copy of the insurance policy setting forth the two-year contractual statute of limitations. [* 4] In reply, Allstate stated that a request for documentation regarding materials sent directly to plaintiff by Allstate has been made. Upon receipt of such documentation, your affirmant will supplement these reply papers. At oral argument held on May 27, 2010, the court permitted Allstate to submit its supplemental reply. When the court inquired as to whether these supplemental papers included an affidavit from an Allstate employee, counsel f o r Allstate indicated no, and then requested an adjournment to submit an affidavit from an employee. The court denied the adjournment indicating that Allstate s counsel had months to submit the affidavit previously and noting that what is troubling to this court is that you are making this request only after the court s question to you as to whether you had an affidavit from an employee (Transcript May 27, 2010 argument, at 4). The court then gave plaintiff time to respond to Allstate s supplemental reply. Allstate then purported to serve plaintiff with the Supplemental Affidavit in Opposition on June 1, 2010. During oral argument on June 17, 2010, the Court denied Allstate s request that plaintiff be required to accept the supplemental affidavit. In the original decision, the court reaffirmed its refusal, finding that the supplemental affidavit was in effect, an improper sur-reply. CPLR 2214; Flores v S t a nkiewicz, 35 AD3d 8 0 4 (2d Dept 2 0 0 6 ) . Allstate now moves for reargument and/or renewal, asserting that it has now attached an affidavit of mailing from Linda [* 5] Sisson, which "rectifies the issue of serving an improper surreply." Allstate further argues that the affidavit creates a presumption that plaintiff received t h e policy, and that plaintiff's mere denial of receipt is insufficient to rebut this showing. Plaintiff opposes the motion, arguing that Allstate has not provided a sufficient basis for granting reargument or renewal and that even if the court were to consider M s . Sisson's affidavit that it does not establish that plaintiff received the policy containing the shortened limitations period. DISCUSSION A motion for reargument is addressed to the discretion o f the court, and is intended to give a party an opportunity to demonstrate that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law. See, F o l e v v Roche, 68 AD2d 558, 567 (1st Dept 1979). CPLR 2 2 2 1 ( e ) sets for the elements of a motion for leave to renew. "A motion for leave to renew: (1) shall be identified specifically as such; (2) shall be based upon new facts not o f f e r e d on the prior motion that would change the prior determination; and (3) shall contain a reasonable justification for the failure to present such facts on the prior motion." "A motion for leave to renew is intended to bring to the Court's attention new facts or additional evidence which, although in existence at the time the original motion was made, were unknown to the movant and were therefore not brought to the [* 6] court's attention." Tishman Constr. Gor p . ~f New York New York, 280 A D 2 d 374, 376 (lat Dept 2001) (citations v. Ci t v of omitted). Here, Allstate does not specify whether it is seeking reargument or renewal. However, evidence previously submitted, b u t not previously accepted is considered "new evidence'' and thus a motion based on s u c h evidence is "properly construed as a motion to renew" Kasem v. p r ice-Rite Off. & Home Furniture, 2 1 AD3d 799, 801-802 (13tDept 2005). It is well settled that the party seeking renewal must provide a reasonable excuse for failing to provide the evidence in connection with t h e original motion. Taub v , Art Students Leasue of N e w York, 6 3 AD3d 630 (1" Dept 2009). Moreover, the First Department has recently noted that "[rlenewal is g r a n t e d sparingly.. .; it is n o t a second chance freely given t o parties who have not exercised d u e diligence in their f i r s t f a c t u a l presentation." Henrv v. Peqyero , 72 A D 3 d 600, 602 (1" Dept), appeal d i smissed, 15 NY3d 820 (2010), recons ideration denied, 16 NY3d 726 (2011)(internal citation and quotation omitted). Here, Allstate asserts that it only became aware that plaintiff was relying on the failure to obtain the policy of insurance upon receipt of plaintiff's affirmation in opposition and that counsel "acted rapidly to obtain the necessarily information." It further asserts that it obtained the affidavit of Ms. Sisson " s h o r t l y before the motion date for o r a l argument" but that the court refused to permit the supplemental reply. Notably, however, Allstate's version of the events is belied [* 7] by the record which shows that Allstate was given an additional opportunity to p r o v i d e a supplemental reply to the plaintiff's opposition b u t failed to submit an affidavit of a person with knowledge of Allstate's mailing procedures in connection with these supplemental papers. The r e c o r d also shows t h a t Allstate only requested that it be given an opportunity to submit an affidavit after the court inquired w h e t h e r it provided one. Under these circumstances, Allstate has not satisfied its burden of showing it h a s a reasonable excuse for failing to provide the affidavit with i t s supplemental reply or t h a t it used due diligence to obtain the affidavit, and renewal should,be denied. Taub v. Art Students Leasue of New York, 63 AD3d a t 484. In any event, even if the court were to consider Ms. Sisson's affidavit, it would not be insufficient to warrant a grant of summary judgment in Allstate's favor. Ms. Sisson states in her affidavit that h e r duties at Allstate include "searching computer records for mailing of policies and cancell.ations"and that with respect t o t h e policy she " p e r f o r m e d a search of the policy history and determined that a new business policy and declaration were mailed to [plaintiff's] agent . . . on the 3'd day of J u l y 2002 and an additional new business policy and declaration were mailed to [plaintiff] on t h e l l t hd a y of J u l y . " Sisson Aff., at ¶ ' s 2 , 3 . She also explains t h e p r o c e d u r e ¬or mailing a s follows: "documents are r u n through an insert machine, then put an envelope, the machine seals the envelope, and then places the correct amount of postage by weight. The process [* 8] machine reads the bar code on the bottom of the document and updates computer information as to delivery to the post office personnel who pick up the documents for mailing (Id,¶ 5). However, Ms. Sisson does not attempt to explain the information in the mailing package computer generated exhibit she references as support for her statements. N o t a b l y , the mailing package lacks any record identifying the insured, nor does it indicate any address. Consequently, neither the record nor: Ms. Sisson s affidavit provide p r o o f as to the address to which the policy was allegedly mailed. Thus, while, in general, routine office practice regarding mailing of notices by insurance companies create a presumption of receipt that must be rebutted by the insured T h i b e a u It v. Travelers Ips. Co., 37 AD3d 1000 (3d Dept 2 0 0 7 ) , this presumption does not a p p l y here as there is no proof as to whether the policy was mailed to plaintiff at the correct address. Under these circumstances, and as plaintiff has denied receiving the policy, even were the court to grant renewal, it would adhere to its original decision finding that there are triable issues of fact as to whether plaintiff received the policy containing the shortened statute of limitations, such that Allstate could avail itself of the shortened limitations period. See 1303 Webster Ave. Realtv Corp. V, Great American SUP lus bines Ins. Co., 63 NY2d 227 (1984); Medical Facilities v, Prvke, 62 N Y 2 d 716, 7 1 7 (1984); Teitelbau m v. New Y o r k P r o p . Ins. Under W r ,L t .l nq As sn., 126 Misc2d 240, 242 (Sup Ct. Queens Co. [* 9] 1984). In view o f the above, it is ORDERED that Allstate's motion to reneb and reargue is denied; and it is f u r t h e r ORDERED that the parties shall appear on 'gccchbd , I, s 2011 at 9:30 am f o r a compliance conference in Part 11, room 351, 60 Centre Street, New York, NY 10007. DATED: October 8 , 2011 + .s.c. NEW YORK COUNTY CLERK'S OFFICE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
