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Commencing an Action When a Homeowner Dies Within the Two Year Statute

June 17, 2015
By: Frank Scahill

Commencing an Action When a Homeowner Dies Within the Two Year Statute: A typical provision in a homeowner's policy states, "[n]o action can be brought [against us (the carrier)] unless the action is started within two years after the date of loss." What happens when the homeowner dies within the statutory two year period to commence an action? CPLR 210( a), entitled "Death of claimant," states: "Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced, and the cause of action survives, an action may be commenced by his [or her] representative within one year after his [or her] death."

Is the representative of the deceased homeowner entitled to the CPLR 210(a) extension of time to bring the claim? Is the filing of a lawsuit within the two year time period set forth in the policy, a "condition precedent" to the right to pursue the claim in court?

The answer is that the CPLR 210(a) extension applies. See Dail v. Merchants Mut. Ins. Co., 74 A.D.3d 28, 30-31, 900 N.Y.S.2d 536, 537 (2010).

"We reject defendant's 'condition precedent' theory inasmuch as the cause of action to recover damages for breach of contract based on a fire or a homeowner's insurance policy existed at common law and was not created by the insurance statute containing the two-year period of limitations (see S & J Deli, 119 A.D.2d 652, 501 N.Y.S.2d 93; Insurance Law § 3404[e] ).1. It has never been incumbent upon an insured to plead and prove compliance with the applicable statute of limitations as a condition precedent in commencing a breach of contract action under the common law against an insurer. Moreover, we perceive no indication in the language of Insurance Law § 3404(e) indicating that the two-year period of limitations was intended to be in the nature of a condition precedent (cf. Kahn v. Trans World Airlines, 82 A.D.2d 696, 709, 443 N.Y.S.2d 79). We, therefore, conclude that the "death toll" in CPLR 210(a) is applicable to an action against an insurer where the policy at issue contains the two-year limitations period contained in Insurance Law § 3404(e)."

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