THOMAS HAMILTON PHARMACY, INC. v. NATIONWIDE MUTUAL INSURANCE COMPANY

2008-08982

68 A.D.3d 853 (2009)

2009 NY Slip Op 9211

889 N.Y.S.2d 466

THOMAS HAMILTON PHARMACY, INC., Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent, et al., Defendant.

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

Decided December 8, 2009.


Ordered that the order is affirmed insofar as appealed from, with costs.

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 N.Y.2d 966, 967-968 [1988]; Halim v State Farm Fire & Cas. Co., 31 A.D.3d 710 [2006]; Schachter v Royal Ins. Co. of Am., 21 A.D.3d 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 A.D.2d 622 [1996]), or estoppel (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d at 968; Proc v Home Ins. Co., 17 N.Y.2d 239, 245-246 [1966]; Culinary Inst. of Am. v Aetna Cas. & Sur. Co., 151 A.D.2d 638 [1989]).

In light of our determination, the plaintiff's remaining contention has been rendered academic.


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