Brenner v Hermitage Ins. Co.

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Brenner v Hermitage Ins. Co. 2018 NY Slip Op 32667(U) October 16, 2018 Supreme Court, New York County Docket Number: 153615/2016 Judge: Debra A. James 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: 1] NEW YORK COUNTY CLERK 10/18/2018 10:28 AM INDEX NO. 153615/2016 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/18/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice --------------------------------------------------------------------------------X 153615/2016 INDEX NO. IAN BRENNER 10/16/2018 MOTION DATE Plaintiff, MOTION SEQ. NO. 003 -vHERMITAGE INSURANCE COMPANY, DECISION AND ORDER Defendant. --------------------------------------------------------------------------------->< The following e-filed documents, listed by NYSCEF document number (Motion 003) 36, 37, 38, 39, 4_0, 41,42,43,44,45,46,47,48, 50, 51,52, 53,54,55, 56, 57 were read on this motion to/for JUDGMENT - SUMMARY ORDER Upon the foregoing documents, it is ORDERED that the motion for summary judgment of defendant HERITAGE INSURANCE ·coMPANY ' lS granted and the complaint ' lS dismissed; and it is further ORDERED that the Clerk of the Court shall enter judgment in favor of defendant dismissing the complaint, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs. 153615/2016 BRENNER, IAN vs. HERMITAGE INSURANCE COMPANY Motion No. 003 1 of 6 Page 1of3 [*FILED: 2] NEW YORK COUNTY CLERK 10/18/2018 10:28 AM INDEX NO. 153615/2016 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/18/2018 DECISION This court agrees with defendant insurance carrier that the date of loss is determined by the date that the premises suffered damage and not the date that the insured discovered such damage. See Lichter Real Estate Number Three, LLC v Greater N.Y. Ins. Co., 43 AD3d 366 (1st Dept. 2007). The deposition testimony of plaintiff's property manager that the vandalism damage occurred before he signed the hold harmless agreement on April 11, 2014, prima facie establishes defendant's entitlement to summary dismissal of the complaint against it for breach of the insurance policy, which complaint is barred by the two-year limitation clause. See 155th Street and Sth Ave. Realty Corp. v National Casualty Co., 221 AD2d 290 (1st Dept. 1995). Moreover, plaintiff fails to come forward with any evidence refuting that submitted ·by defendant that tends to show that the loss occurred no later than February 27, 2014. The defendant appends copies of logs that show that on such date, the Town of Hempstead building inspector, determining "the heat, hot water and electricity were not functioning", posted the 72-hour notice on the premises. Nor persuasive is plaintiff's argument that the loss was not ascertainable before his property manager signed the hold harmless agreement on April 11, 2014, because the Town of Hempstead had boarded up the premises on March 31, 2014, denying him access. Defendant comes forward with no 153615/2016 BRENNER, IAN vs. HERMITAGE INSURANCE COMPANY Motion No. 003 2 of 6 Page 2 of 3 [*FILED: 3] NEW YORK COUNTY CLERK 10/18/2018 10:28 AM INDEX NO. 153615/2016 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/18/2018 written lease that denied him the right to re-enter and duty to repair the premises, let alone any evidence of whether an "oral agreement included a right to re-enter and a duty to repair" (see Sanchez v Irun, 83 AD3d 611, 612 [1st Dept. 2011]), before the premises were so boarded. The court also agrees with defendant that plaintiff's 34day delay in providing notice of the loss was unreasonable and unjustified. See Pandora Industries, Inc. v St. Paul Surplus Lines Ins. Co., 188 AD2d 277 (l 5 t Dept. 1992). 10/16/2018 DATE CHECK ONE: x x CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 153615/2016 BRENNER, IAN vs. HERMITAGE INSURANCE COMPANY Motion No. 003 3 of 6 D D OTHER REFERENCE Page 3 of 3

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