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Fabozzi v. Lexington Insurance Co.

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Argued: November 9, 2009

Before: LEVAL, B.D. PARKER, AND LIVINGSTON, Circuit Judges.

Plaintiffs-appellants Paul and Annette Fabozzi appeal from a judgment of the United States District Court for the Eastern District of New York (Townes, J.). The Fabozzis had a homeowners insurance policy with Lexington Insurance Company (“Lexington”), which covered their oceanside home on Staten Island, New York. When the house began to collapse as the result of structural damage, they filed a claim with Lexington. Twenty-six months later, Lexington denied coverage and the Fabozzis subsequently sued. Relying on a policy provision that required any suit to be commenced within two years “after the date of loss,” Lexington contended that the Fabozzis had waited too long and the limitations period had expired. The district court agreed, granted Lexington’s motion for summary judgment, and dismissed the suit. This appeal turns on whether, under New York law, the limitations period was triggered when the underlying damage to their home occurred, or when all the conditions precedent to bringing suit had been met. Because, under long-standing New York law, the limitations period did not begin to run until the Fabozzis’ claim against Lexington accrued, rather the date of the accident, we conclude that the action must be remanded. Accordingly, the judgment of the district court is vacated.

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