Il Cambio, Inc. v. U.S. Fidelity & Guaranty Co.

Plaintiffs are precluded from obtaining reimbursement on a replacement cost claim since they “failed to satisfy the condition precedent of rebuilding” (DeLorenzo v Bac Agency, 256 AD2d 906, 907 [1998]; see D.R. Watson Holdings, LLC v Caliber One Indem. Co., 15 AD3d 969 [2005], lv dismissed 5 NY3d 842 [2005]; Alpha Auto Brokers v Continental Ins. Co., 286 AD2d 309, 310 [2001]). Plaintiffs have the burden of proving that the alleged loss is covered under the policy (see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339 [2003]), and the record establishes that there is no dispute that plaintiffs have never rebuilt or replaced the restaurant. Thus, their request for further discovery would not be productive (see Oates v Marino, 106 AD2d 289, 292 [1984]).

The complaint is also barred by the clear and unambiguous two-year suit limitations period in the policy (see Costello v Allstate Ins. Co., 230 AD2d 763 [1996]). Contrary to plaintiffs’ contention, defendant insurer did not waive, nor is it estopped from asserting, its contractual limitations defense based upon the fact of its payment of a portion of plaintiffs’ claim before the expiration of the limitations period (see New Medico Assoc. v Empire Blue Cross & Blue Shield, 267 AD2d 757, 759 [1999]).

Claims in negligence are governed by the three-year limitations period set forth in CPLR 214 (4) (see Tischler Roofing & Sheet Metal Works Co. v Sicolo Garage, 64 Misc 2d 825 [1970]). The record demonstrates that the date of the loss of the restaurant was September 11, 2001; plaintiff received payment in the sum of $3,400,000 from the insurance carrier and the claim was closed on December 19, 2001; plaintiffs representative was able to reopen the claim in March 2002; and plaintiff received an additional $181,288 on September 27, 2002. Since this action was brought on April 12, 2006, plaintiffs’ claim against their adjuster was properly dismissed as time-barred.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur — Tom, EJ., Sweeny, Catterson, Acosta and Manzanet-Daniels, JJ.