You are here: / / THE SHORTER LIMITATIONS PERIOD IN THE FIRE INSURANCE POLICY WAS NOT FAIR...
, ,

THE SHORTER LIMITATIONS PERIOD IN THE FIRE INSURANCE POLICY WAS NOT FAIR AND REASONABLE; THE MOTION TO DISMISS IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in the fire-insurance breach of contract case, determined the contractual limitations period in the insurance policy was not fair and reasonable:

“Article 2 of the CPLR (‘Limitations of Time’), provides that ‘[a]n action . . . must be commenced within the time specified in this article unless . . . a shorter time is prescribed by written agreement'” … . “‘[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable'” … . “‘[T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor'” … . “‘Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … .

The Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint. Contrary to the defendants’ contentions, the modified limitations period in the subject insurance policy was not fair and reasonable. The insurance policy provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss” and that “[w]e will pay no more than the actual cash value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss.” Here, the one-year limitation was unreasonable since the condition precedent, completion of actual repair or replacement, was not within the plaintiffs’ control and could not be met within that period … . “‘A “limitation period” that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim'” … . Filasky v Andover Cos., 2024 NY Slip Op 04545, Second Dept 9-25-25

Practice Point: Parties can agree on shorter limitations periods. Here the limitations period in the subject fire insurance policy expired before suit could be brought rendering it unfair, unreasonable and unenforceable.

 

You might also like
Money Available to Father from Relatives for Children’s College Expenses Should Have Been Considered in Allocating those Expenses between Mother and Father
THE DRIVER OF THE FIRE ENGINE RESPONDING TO AN EMERGENCY STRUCK PLAINTIFF’S STOPPED CAR WHILE MAKING A RIGHT TURN FROM A LANE TO THE LEFT OF PLAINTIFF; IT WAS NOT DEMONSTRATED THE FIRE-ENGINE DRIVER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS (SECOND DEPT).
GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING.
Assault by NYC Firefigthers in a Restaurant Raised Questions of Fact Whether the City Defendants Were Liable for the Injuries to the Plaintiffs Based Upon Negligent Hiring, Training, Supervision and/or Retention/Fact that Suit Could Not Be Based Upon Respondeat Superior (Actions Outside the Scope of Employment) Did Not Preclude Suit Based Upon City’s Own Alleged Negligence (!)
Relationship of Prenuptial Agreement to Temporary Maintenance and Award of Attorneys Fees
PLAINTFF’S MOTION TO STRIKE DEFENDANTS’ ANSWER FOR SPOLIATION OF EVIDENCE IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN CONSIDERED BY THE MOTION COURT BEFORE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
THE ROBBERY VICTIM’S IDENTIFICATION OF DEFENDANT IN A PHOTO ARRAY AFTER THE POLICE HAD SHOWN THE ROBBERY VICTIM A CELL PHONE PHOTO DEPICTING THE DEFENDANT USING A TASER ON SOMEONE SHOULD HAVE BEEN SUPPRESSED, THE ROBBER HAD THREATENED THE VICTIM WITH A TASER (SECOND DEPT).
BECAUSE, BASED ON A LINE OF DUTY REPORT, THE CITY HAD TIMELY KNOWLEDGE OF THE CIRCUMSTANCES AND LOCATION OF PETITIONER’S SLIP AND FALL, THE CITY WAS NOT PREJUDICED BY A DELAY IN FILING THE NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE THE LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PROPERTY IS OWNED BY AN LLC; ALTHOUGH THE PARTIES TO THE PARTITION ACTION... A PRIVILEGE LOG WHICH IDENTIFIES WITHHELD DOCUMENTS BY CATEGORY INSTEAD OF INDIVIDUALLY...