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Brenner v. Hermitage Ins. Co., 2018 NY Slip Op 32667(U), 2018 WL 5261037 (NY Co. Sup. Ct., October 16, 2018)

The Brenner case involved a first-party property dispute in which the insured landlord made a claim under his policy following vandalism damage to an investment building he rented entirely to a tenant. Hermitage denied coverage on several grounds, including that the damage to the premises was due to wear and tear by the tenant’s occupancy.

On April 29, 2016, plaintiff commenced suit against Hermitage alleging that the loss occurred on April 30, 2014.  Thereafter, Hermitage discovered evidence that the loss occurred earlier. Specifically, responses to Freedom of Information Act requests showed that plaintiff had entered into a hold harmless agreement with the Town of Hempstead on April 11, 2014, in which the premises was described as being uninhabitable and damaged as of that date.  In addition, plaintiff had described in a written request for police records that the loss occurred sometime between March 20, 2014 and April 4, 2014.

In light of this and other information, Hermitage moved for summary judgment, arguing that plaintiff failed to comply with the policy’s two-year suit limitation, since the action was at least 19 days late. Hermitage also contended that plaintiff breached the policy’s “prompt” notice of loss condition because plaintiff provided notice of loss to Hermitage on May 16, 2014, but the evidence suggested that plaintiff was aware of the loss no later than April 11, 2014, when he entered into the hold harmless agreement.

The court found in favor of Hermitage and dismissed the complaint. Specifically, the trial judge concluded that the deposition testimony of plaintiff’s property manager (i.e., that the damage occurred before the April 11, 2014 hold harmless agreement) was proof that the loss occurred no later than April 11, 2014.  The judge rejected plaintiff’s argument that the suit limitation should not run until the loss was ascertainable by him, which was allegedly long after the Town of Hempstead had boarded up the premises. Plaintiff provided no evidence of whether he had a right to reenter the premises while it was in a damaged state and prior to being boarded up. Finally, the judge held that the 34-day delay in providing notice to Hermitage was not prompt as a matter of law.

Hermitage Insurance Co. was represented by partner Kevin F. Buckley and special counsel Jodi S. Tesser.