Thomas Hamilton Pharmacy, Inc. v. Nationwide Mutual Insurance ( 2009 )

The defendant Nationwide Mutual Insurance Company (hereinafter Nationwide) met its initial burden of establishing that the plaintiff commenced this action after expiration of the two-year limitations period contained in the subject insurance policy (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967-968 [1988]; Halim v State Farm Fire & Cas. Co., 31 AD3d 710 [2006]; Schachter v Royal Ins. Co. of Am., 21 AD3d 1024 [2005]). In opposition, the 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 (2). Moreover, the plaintiff failed to raise a triable issue of fact as to waiver (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d at 968; Saxena v New York Prop. Ins. Underwriting Assn., 232 AD2d 622 [1996]), or estoppel (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d at 968; Proc v Home Ins. Co., 17 NY2d 239, 245-246 [1966]; Culinary Inst. of Am. v Aetna Cas. & Sur. Co., 151 AD2d 638 [1989]).

In light of our determination, the plaintiffs remaining contention has been rendered academic. Mastro, J.P., Belen, Hall and Austin, JJ., concur.