Quantum Color Corp. v. CGU Insurance

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: A fire destroyed plaintiff’s premises located at 8742-8748 Buffalo Avenue in the City of Niagara Falls on December 6, 1996. The premises were insured under a policy issued by defendant. Plaintiff submitted a claim for $479,993.98, but defendant paid only $254,040.60 on the claim. Plaintiff contends that, during negotiations over the difference, defendant agreed to proceed to an appraisal arbitration process pursuant to the policy. Because negotiations failed, plaintiff commenced this breach of contract action, *900but only after the two-year contractual limitations’ period expired. Plaintiff moved for arbitration and appraisal and defendant cross-moved for summary judgment dismissing the complaint as time-barred.

Supreme Court erred in granting plaintiff’s motion and properly denied defendant’s cross motion because an issue of fact exists whether the parties agreed to the appraisal process prior to the expiration of the contractual limitations’ period (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). We therefore modify the order by denying plaintiffs motion.

We have reviewed defendant’s remaining contentions and conclude that they are lacking in merit. (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Arbitration.) Present — Pine, J. P., Hayes, Wisner and Lawton, JJ.