This was an action for breach of contract of an insurance policy issued to plaintiff by defendant Nationwide Mutual Insurance and for negligence as against defendant New York Adjustment Bureau Inc. for its failure to advise plaintiff that the insurance policy contained a twoyear limitations period within which to bring an action against Nationwide. “On November 7, 2002, a fire occurred at plaintiff’s property, after which plaintiff retained New York Adjustment Bureau to adjust its insurance claim.”

“The policy provides that the insured may make a claim ‘on an actual cash value basis instead of on a replacement cost basis. In the event you elect to have loss or damage settled on an actual cash value basis, you may still make a claim on a replacement cost basis...’ (Section E, Property Loss Conditions, 6. Loss Payment[c]). The policy further provides that the insurer will not pay on a replacement cost basis until the damaged property is actually repaired or replaced and unless the repairs or replacement are made as soon as reasonably possible after the loss or damage (Section E, Property Loss Conditions, 6. Loss Payment [d]).”

“The policy further provides that any action ‘under this insurance’ must be brought two years after the date on which the direct physical loss or damage occurred.” “On May 29, 2003 plaintiff and defendant Nationwide settled plaintiff ’s claim. The replacement cost of the property $731,273.54, which was more than the total amount of available insurance of $663,372, and the actual cash value was $500,000. A supplemental claim could be filed in accordance with the terms and conditions of the Replacement Cost coverage in the amount of $164,372 (‘depreciation holdback’ amount) (see Statement as to Full Cost of Repair or Replacement). Payment was thereafter made to plaintiff in the amount of $499,000 ($500,000 actual cash value less a $1,000 deductible). Nationwide was notified several times during 2003 that plaintiff intended to rebuild.”

“Plaintiff hired an architect in May 2003. Necessary building permit applications were submitted in October 2003, and were rejected several times until approval was finally obtained on January 5, 2005. By letter dated February 20, 2005, Nationwide was advised that the building permit had been issued. Mr. Sarmiento of New York Adjustment Bureau asserts that at that time, David Porter of Nationwide told him that the limitation period would not be a problem. Contracts for the construction were entered into by plaintiff on May 17, 2005.” “Documentation was then forwarded to Nationwide showing that reconstruction had been commenced, and requesting release of the holdback (letter dated January 31, 2006). Nationwide then advised that it would not release any of the holdback money (Letter dated March 15, 2006) as ‘the amount spent to date [$375,500] does not exceed the full ACV amount of the claim’ and that ‘[t]he policy requires that the repairs are actually completed. This building is not even at 25% completed. We cannot make any payments based on those facts.’” “Thereafter the claim was denied based on the two-year limitation provisions in the (letter dated July 21, 2006). Plaintiff then commenced this action.”

“Defendant Nationwide contends that this action is barred by the two-year limitation period set forth in the policy. Plaintiff contends that Nationwide waived the limitation period or should be estopped from asserting it.”

“This action was commenced on September 12, 2006, almost four years after the date of the November 2, 2002 fire, and defendant Nationwide has therefore demonstrated prima facie its entitlement to summary judgment as a matter of law based on the two-year limitation period in the policy (Strupp v. Heritage Mutual Insurance Company, 143 AD2d 433 [2d Dept., 1988]; see also Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 968 [1988]).”

“In opposition, plaintiff has failed to raise a triable issue of fact as to whether Nationwide waived or should be estopped from asserting the two-year limitation period.” “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. Waiver is an intentional relinquishment of a known right and should not be lightly presumed (cites omitted) (Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 968 [1988]).”

“As in the case of Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d at 968 -[1099], plaintiff offers no evidence from which a clear manifestation of intent by defendant to relinquish the protection of the contractual limitations period could be reasonably inferred. Nor do the facts show that defendant, by its conduct, otherwise lulled plaintiff into sleeping on its rights under the insurance contract. Indeed, since the conduct complained of occurred subsequent to expiration of the limitations period, plaintiff could not have relied on that conduct in failing to timely commence its action.”

“There was no contract between the plaintiff and Nationwide from December 2003 until February 2005, after the limitation period had expired. All conduct complained of by plaintiff commenced in February, 2005, after the two-year limitations period, and plaintiff could not therefore have relied on that conduct failing to timely commence an action.”

“Accordingly, plaintiff’s motion for summary judgment in its favor is denied and defendant Nationwide’s motion for summary judgment dismissing the complaint and all cross claims against it is granted.” “That branch of plaintiff ’s motion to amend its complaint to assert consequential damages against Nationwide is therefore denied as moot.”

“Defendant New York Adjustment Bureau’s cross-motion for summary judgment is denied. This cross-motion was served on June 2, 2008, after the thirty-day period provided by the IAS Justice for making a summary judgment motion. Movant failed to obtain leave of court on good cause shown prior to making the motion, and movant has not demonstrated on this motion for the delay (CPLR 3212[a]; Micelli v. State Farm Mutual Automobile Insurance Company, 3 NY3d 725; Brill v. City of New York, 2 NY3d 648). That branch of the motion to amend its answer to add a counterclaim for its fees on recovery of the replacement cost is denied.”

Comment: This is one of those situations where, when a statute of limitations is coming up, one cannot reasonably rely on anyone’s assertion that the limitations defense is “not a problem.” When the 2-year limit was coming up and the building permits hadn’t even been issued, the plaintiff (and its adjuster) should have either obtained a written extension of the 2 year limit from Nationwide, or commenced suit. Also important to note here is that the insurer’s alleged assurance “not to worry” about the limitations period came after it expired, which may have made some difference.

No Restaurant Liability for Slip and Fall on Greasy Spot

 In this personal injury suit, the defendants appealed from an order of the Supreme Court, Richmond County (Minardo, J.) which denied their motion for summary judgment dismissing the complaint. The Appellate Division reversed, and the defendants’ motion for summary judgment dismissing the complaint was granted.

“The plaintiff allegedly slipped and fell on a greasy substance on the floor of the defendants’ restaurant. The plaintiff did not see the alleged greasy substance either before or after the accident. Her three dinner companions, who came to the area of the accident immediately after she fell, stated that they did not see the alleged greasy condition. When they got down on their hands and knees to assist the plaintiff, however, they felt a greasy substance on their hands and their clothing became stained with grease. The plaintiff and her companions did not know how the alleged greasy substance came to be on the floor or how long it had been there.”

“In support of their motion for summary judgment dismissing the complaint, the defendants submitted the deposition testimony of a night manager of the restaurant who was on duty at the time of the accident. He testified that pursuant to the restaurant’s policy, the restaurant was ‘continually inspected all night, all of the time’ to reveal any conditions that might be a danger to any customer. He also submitted an affidavit stating that he was in the area of the accident approximately 5 to 10 minutes before the accident, and did not notice any ‘hazardous, dangerous, or slippery’ condition on the floor.”

“In addition, he stated in his affidavit that none of the defendants’ staff had been told prior to the accident of any dangerous or slippery conditions in the area of the accident, and that he would have been told if there been any such complaints. The Supreme Court denied the defendants’ motion for summary judgment dismissing the complaint. We reverse.”

“To impose liability upon a defendant in a slip-and-fall action, there must be evidence that the defendant either created the condition which caused the accident, or had actual or constructive notice of the condition (see Steisel v Golden Reef Diner, 67 AD3d 670, 671; DeLeon v Westhab, Inc., 60 AD3d 888; Sloane v Costco Wholesale Corp., 49 AD3d 522, 523). A defendant has constructive notice of a defect when the  defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838).”

“Applying these principles here, we find that the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that they did not create or have actual or constructive notice of the alleged hazardous condition which caused the plaintiff to fall (see Steisel v Golden Reef Diner, 67 AD3d at 671; Pomerantz v Culinary Inst. of Am., 2 AD3d 821; Gloria v MGM Emerald Enters., 298 AD2d 355; Dwoskin v Burger King Corp., 249 AD2d 358). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Hartley v Waldbaum, Inc., 69 AD3d 902, 903).” “The plaintiff ’s contention that the defendants’ employee created the alleged hazardous condition by dropping some greasy substance on the floor was speculative (see Hagan v P.C. Richards & Sons, Inc., 28 AD3d 422, 423; Gatanas v Picnic Garden B.B.Q. Buffet House, 305 AD2d 457; Sanchez-Acevedo v Mariott Health Care Serv., 270 AD2d 244).”

“Additionally, evidence failed to show that the defendants had actual notice of a recurrent hazardous condition at the accident location (see Gloria v MGM Emerald Enters., 298 AD2d at 356).

Comment: In a restaurant, stuff falls on the floor all the time. Waiters spill things, and more frequently, so do the patrons—and often these go unnoticed unless someone slips on them. That’s why the case law requires that a restaurant have a reasonable amount of notice of the spill before there can be liability. Unless, of course, there is evidence that the restaurant knows that it created the specific hazard or knows that someone else did.