Thomas Hamilton Pharmacy, Inc. v. Nationwide Mutual Insurance

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 NY2d 966, 967-968 [1988]; Halim v State Farm Fire & Cas. Co., 31 AD3d 710 [2006]; Schachter v Royal Ins. Co. of Am., 21 AD3d 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 AD2d 622 [1996]), or estoppel (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d at 968; Proc v Home Ins. Co., 17 NY2d 239, 245-246 [1966]; Culinary Inst. of Am. v Aetna Cas. & Sur. Co., 151 AD2d 638 [1989]).

In light of our determination, the plaintiffs remaining contention has been rendered academic. Mastro, J.P., Belen, Hall and Austin, JJ., concur.