Bakos v. New York Central Mutual Fire Insurance , 920 N.Y.S.2d 552 ( 2011 )

Appeal from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered July 21, 2009 in a breach of contract action. The order denied the motion of defendant to dismiss the complaint.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that defendant is obligated to perform under the homeowner’s insurance policy that it issued to plaintiff. We conclude that Supreme Court properly denied those parts of defendant’s motion to dismiss the- first cause of action pursuant to CPLR 3211 (a) (1) and (7). That cause of action seeks a declaration that defendant is obligated to perform pursuant to the policy with respect to reimbursement for the reconstruction of plaintiffs home and that defendant “shall not be entitled to avail itself of the two-year contractual bar on suits concerning . . . any disputes [under the policy that] have not yet arisen.”

The loss settlement provision of the policy states that defendant will pay the cost to repair or replace an insured building, “but not more than the least of the following amounts: (1) [t]he limit of liability under [the] policy that applies to the building; (2) [t]he replacement cost of that part of the building damaged with material of like kind and quality and for like use; or (3) [t]he necessary amount actually spent to repair or replace the damaged building.” That provision further states that defendant “will pay no more than the actual cash value of the damage until actual repair or replacement is complete.” Another provision in the policy states that “[n]o action can be brought against [defendant] unless there has been full compliance with all of the terms under [the Conditions] Section ... of [the] policy and the action is started within two years after the date of loss.”

With respect to that part of the motion to dismiss the first cause of action based on documentary evidence, defendant was required to demonstrate “that the documentary evidence conclusively refutes plaintiff’s . . . allegations” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]). Defendant contends that plaintiffs failure to complete the conditions precedent for the payment of replacement cost proceeds, i.e., full reconstruction of the home, conclusively refutes plaintiffs allegation that defendant has refused to acknowledge its obligations pursuant to the policy. We reject that contention inasmuch as plaintiff does not seek immediate payment of the replacement cost of his home (see generally id. at 590-591). Contrary to the further contention of defendant, it failed to submit any evidence establishing that plaintiff failed to provide defendant with timely notice that he intended to make a claim for the replacement cost of his home.

With respect to that part of its motion to dismiss the first cause of action for failure to state a cause of action, defendant contends that the contractual two-year limitations period expired before plaintiff completed all of the repairs to his home. We reject that contention. ‘ ‘ [Unambiguous provisions of an insurance contract must be given their plain and ordinary meaning” (White v Continental Cas. Co., 9 NY3d 264, 267 [2007]) and, here, the plain language of the loss settlement provision of the policy does not impose any time limit on the reconstruction of the home. Contrary to defendant’s contention, the contractual provision imposing a two-year limitation on legal action does not impose a time limit on reconstruction.

We further conclude that the court properly denied that part of defendant’s motion to dismiss the second cause of action for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Contrary to defendant’s contention, plaintiff has “alleged facts that could give rise to a cause of action for breach of contract based upon a breach of the covenant of good faith and fair dealing” (Millers Wood Dev. Corp. v HSBC Bank USA, 300 AD2d 1015, 1017 [2002]; see generally New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Medina v State Farm Mut. Auto. Ins. Co., 303 AD2d 987, 989 [2003]).

All concur except Peradotto, J., who dissents and votes to reverse in accordance with the following memorandum.