McGIVNEY v. LIBERTY MUTUAL FIRE INSURANCE COMPANY


305 A.D.2d 559 (2003)

759 N.Y.S.2d 379

JAMES J. McGIVNEY, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 19, 2003.


Ordered that the order is affirmed, with costs.

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. "Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel" (Gilbert Frank Corp. v Federal Ins. Co., 70 N.Y.2d 966, 968 [1988]; see Shah v Cambridge Mut. Fire Ins. Co., 304 A.D.2d 815). The plaintiff failed to offer any evidence "from which a clear manifestation of intent by the defendant to relinquish the protection of the contractual limitations period could be reasonably inferred" (Gilbert Frank Corp. v Federal Ins. Co., supra at 968). The facts do not show that the plaintiff was misled or lulled into inactivity, thereby losing his right to sue. Therefore, the defendant's motion for summary judgment dismissing the complaint was properly granted (see Culinary Inst. of Am. v Aetna Cas. & Sur. Co., 151 A.D.2d 638, 639 [1989]; McGoey v Insurance Co. of N. Am., 57 A.D.2d 945 [1977]).


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