LINQ1 LLC v 170 E. End Ave. Condominium

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LINQ1 LLC v 170 E. End Ave. Condominium 2017 NY Slip Op 32579(U) December 8, 2017 Supreme Court, New York County Docket Number: 154594/2016 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/11/2017 02:51 PM 1] NYSCEF DOC. NO. 73 INDEX NO. 154594/2016 RECEIVED NYSCEF: 12/11/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED 2 PART Justice --------------------------------------~---~----------------------------------X LINQ1 LLC, INDEX NO. 154594/2016 Plaintiff, -v- MOTION SEQ. NO. 001 170 EAST END AVENUE CONDOMINIUM, LTB MECHANCIAL CORP., STATE FARM FIRE AND CASUALTY DECISION AND ORDER Defendants. ----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20, 21, 22, 23, 24, 25, 26,27, 28,29, 30, 31, 32, 33,34, 35, 36, 37, 38, 39,40,41,42, 43,44, 45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60, 62,63, 64, 65, 66, 67 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) In this action by plaintiff LINQ 1 LLC to recover for mold and water damage to Unit 20 of the building located at 170 East End Avenue, New York, NY, defendant State Farm Fire and Casualty Company (hereinafter "defendant'') moves for summary judgment dismissing the complaint against it on the ground that it is barred by the two-year limitations period in the insurance policy, and plaintiff cross-moves for leave to replead against State Farm. After oral argument, and upon a review of the papers submitted as well as the relevant statutes and case law, the motion is granted. Plaintiff alleges that it purchased the subject apartment as an income property in February 2010 and that it sustained mold and water d<;image significant enough to require the tenants in the property to leave in July 2013. Plaintiff asserts that the exact cause of the mold is still not determinable. In August 2013, plaintiff submitted a claim to defendant, its insurer for the property. (Doc. No. 21 ). By letter dated October 25, 2013; defendant denied the claim and Page 1of4 154594/2016 LINQ1 LLC vs. 170 EAST END AVENUE Motion No. 001 1 of 4 [*FILED: NEW YORK COUNTY CLERK 12/11/2017 02:51 PM 2] NYSCEF DOC. NO. 73 INDEX NO. 154594/2016 RECEIVED NYSCEF: 12/11/2017 recited, verbatim, among other things, the provision in the insurance contract that "f n ]o action shall be brought unless there has been full compliance with the policy provisions and the action is started within two years after the occurrence causing loss or damage." (Doc. No. 16) (emphasis added). The letter also specified that defendant considered the date of loss to be July 19, 2013. By email dated November 12, 2013, counsel for plaintiff submitted an email asking for the reports from defendant's experts that the letter stated was enclosed, but apparently had not actually been. (Doc. No. 27). The email made no reference to the limitations period recited in defendant's letter, and nothing in the papers before this Court suggests that any further discussion regarding the limitations period was held until the commencement of this action in October 2016, well over two years after the July 19, 2013 date ofloss and, indeed, also more than two years after the denial letter. While a cause of action sounding in breach of contract must ordinarily be brought within 6 years after the alleged breach (see CPLR 213 [2]), "'an agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable"' (Executive Plaza, LLC v Peerless Ins. Co., 22 NY3d 511, 518 [2014] [brackets omitted], quoting John J. Kassner & Co. v City of New York, 46 NY2d 544, 550-551 [1979]; accord Smile Train, Inc. v Ferris Consulting Corp., 117 AJ?3d 629, 630 [1st Dept 2014]). The two-year limitations period for first-party coverage in the contract at issue here is unambiguous and enforceable (Doc. No. 15) (see Blitman Constr. Corp. v Insurance Co. of N. Am., 66 NY2d 820, 823 [1985]; Blanar vState Farm Ins. Cos., 34 AD3d 1333, 1333-1334 [4th Dept 2006]; BNS Building LLC v Greenwich Ins. Co., 2010 NY Slip Op 30654[U], 2010 WL 1259934 [Sup Ct, NY County 2010, Gische, J.]). Particularly in light of the recitation of the shortened limitations period in the denial letter, plaintiff cannot seriously contend that defendant 154594/2016 LINQ1 LLC vs. 170 EAST END AVENUE Motion No. 001 Page 2 of 4 2 of 4 [*FILED: NEW YORK COUNTY CLERK 12/11/2017 02:51 PM 3] NYSCEF DOC. NO. 73 INDEX NO. 154594/2016 RECEIVED NYSCEF: 12/11/2017 waived same or that it constituted some sort of secret provision of which plaintiff was not made aware. Neither has plaintiff pointed to any concrete conditions precedent that made it impossible to bring suit within the time provided by the contract (see BNS Building LLC v Greenwich Ins. Co., 2010 NY Slip Op 30654[U], 2010 WL 1259934; compare Executive Plaza, LLC v Peerless Ins. Co., 22 NY3d at 519). This Court has considered the remainder of plaintiffs arguments and finds them to be without merit. Finally, plaintiffs cross motion for leave to replead must be denied, since this Court can discern no cause of action that survives the application of the contractual limitations period (see Genger v Genger, 135 AD3d 454, 455 [I st Dept 2016], Iv denied 27 NY3d 912 [2016]). Accordingly, it is hereby: ORDERED that defendant State Farm Fire and Casualty's motion to dismiss the complaint against it is granted, and the complaint against it is severed and dismissed; and it is further ORDERED that plaintiffs cross motion for leave to replead is denied; and it is further ORDERED that counsel for State Farm is directed to serve a notice of entry on all sides within 20 days after this order is entered; and it is further 154594/2016 LINQ1 LLC vs. 170 EAST END AVENUE Motion No. 001 Page 3 of 4 3 of 4 [*FILED: NEW YORK COUNTY CLERK 12/11/2017 02:51 PM 4] NYSCEF DOC. NO. 73 INDEX NO. 154594/2016 RECEIVED NYSCEF: 12/11/2017 ORDERED that counsel for State Farm is directed toe-file a Notice to County Clerk (Form EF-22), with,a copy of this order attached thereto, and the Clerk is directed to remove State Farm Fire and Casualty from the caption as a defendant. 12/8/2017 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER .CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT OoTHER D REFERENCE Page 4 of4 154594/2016 LINQ1 LLC vs. 170 EAST END AVENUE Motion No. 001 4 of 4

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