Papers Numbered Defendant’s Motion to Dismiss with Affirmation and Memorandum of Law, Exhibits Attached 1 Plaintiff’s's Opposition to Motion to Dismiss 2 Plaintiffs Affirmation in Opposition to Motion to Dismiss 3 DECISION AND ORDER Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows: PROCEDURAL HISTORY On April 22, 2022, Mohammed Keita, (hereinafter, “Plaintiff”), filed this action against American Security Insurance Company, (hereinafter, “Defendant”) seeking $50,000.00 for Defendant’s “Breach of Contract or Warranty” for incidents occurring on January 2, 2018 and September 1, 2021. On June 9, 2022, Defendant filed a pre-answer motion to dismiss pursuant to CPLR §3211(a)(1) and CPLR §3211(a)(7). Plaintiff replied in opposition on June 21, 2022 and submitted an Affirmation in Opposition to the motion to dismiss on July 5, 2022. The matter was heard in Court on July 13, 2022 and the motions were taken on submission. DISCUSSION Defendant moves to dismiss the action pursuant to CPLR §3211(a)(1) and CPLR §3211(a)(7) on the grounds that a defense is founded upon documentary evidence and that the Plaintiff fails to state a cause of action. Specifically, Defendant contends that pursuant to the policy documents and agreements contained therein, Plaintiff’s claim with regard to the 2018 loss is untimely as the alleged incident occurred on January 2, 2018 and the policy agreement limits the time frame to bring a cause of action to two years after the alleged incident. Furthermore, Defendant contends that Defendant did not have a policy with Plaintiff for the September 2021 loss and thereby cannot sustain a claim for breach of a contract that did not in fact exist. In response to said motion, Plaintiff replies by explaining the reason for bringing this cause of action. Plaintiff’s sole point of contention is that the losses are covered under the policy provision and declaration. I: CPLR §3211 (a)(1) Pursuant to CPLR §3211(a)(1), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence. To prevail on a defense founded on documentary evidence, the document that is relied upon must definitively and conclusively establish a defense as a matter of law, dispose of the adversary’s claim, and resolve all factual issues. Jesmer v. Retail Magic, Inc., 55 A.D.3d 171, 180-181 (2d. Dep’t 2008); Snyder v. Voris, Martini & Moore, LLC, 52 A.D.3d 811, 812 (2d. Dep’t 2008). Where documentary evidence definitively contradicts factual allegations and conclusively disposes of the claim, dismissal pursuant to CPLR §3211(a)(1) is appropriate. Berardino v. Ochlan, 2 A.D.3d 556, 557 (2d. Dep’t 2003). CPLR §201 states that an action must be commenced within the specified time frame unless a shorter time is prescribed by written agreement and that a court is prohibited from extending the time limit for the commencement of an action. Parties may enter a written agreement to shorten the time period in which to commence an action so long as the shorter time period is not unreasonably short and the agreement was not entered into under fraud, duress, or misrepresentation. Wayne Drilling & Blasting, Inc. v. Felix Industries, Inc., 129 A.D.2d 633, 634 (2d. Dep’t 1987); Hornstein v. Negev Airbase Constructors, 110 A.D.2d 884 (2d. Dep’t 1985). Courts have routinely held that in the context of insurance breach of contract claims, shortened time limit agreements are enforceable. Gilbert Frank Corp. v. Federal Ins, Co., 70 N.Y.2d 966 (1988)(holding that the a real property insurance policy’s one year time limit was enforceable); John v. State Farm Mut. Auto. Ins, Co., 116 A.D.3d 1010 (2d. Dep’t 2014)(holding that an automobile insurance policy’s one year time limit was enforceable); Minichello v. N. Assur. Co. of Am., 304 A.D.2d 731 (2d. Dep’t 2003)(holding that a residential homeowner’s insurance policy’s two year time limit was enforceable where plaintiff failed to produce evidence of waiver). Here, Plaintiff’s claim against Defendant is for Breach of Contract or Warranty for “failure to pay for vandalism damages (01/02/2018) and windstorm damages. And also Hurricane Ida damages to 190 Vanderbilt Avenue” from January 2, 2018 and September 1, 2021 under Policy Numbers MLR 15528426479, ALR 07235570228, and MLR 15528857512. Defendant contends that the policy covering the property at the time, January 2, 2018, contained a clause that limited the time frame to bring a cause of action to two years. In support of its argument, Defendant attaches Exhibit 2, which it purports to be the policy that was in effect at the time of the alleged loss. This Exhibit depicts the Policy/Certificate Number as MLR 15528857512 for a property located at 190 Vanderbilt Avenue, Staten Island, NY 10304. It shows that the effective dates of the policy are October 1, 2017 to October 1, 2018. Page 7 of 8 of Exhibit 2 addresses the timeliness issue by stating: “11. Action Against Us. No action can be brought unless the Policy provisions have been complied with and the action is started within one year after the date of loss.” Defendant also includes the Mortgagee’s Interest Protection Residential Property New York Amendatory Endorsement. Here, the one year time limit is changed to two years and specifically states: “Action Against Us. No action can be brought against us unless there has been full compliance with all of the terms under this Policy and the action is started within two years after the inception of the loss. For purposes of this condition, inception of the loss means the date on which the direct physical loss or damage occurred.” Here, the documentary evidence is clear. Both sides agree that a contract existed. The agreed upon contract states that any action must be brought within two years after the inception of the loss. Plaintiff provides no evidence of any waiver by Defendant or that the contract was entered into under fraud or duress. Thus, the Court finds the two year time limitation to be reasonable. This documentary evidence conclusively eliminates all issues of fact in that it shows that a contract existed and set a specified time period to commence an action that Plaintiff failed to adhere to. Plaintiff failed to offer any evidence to the contrary. As the action with regard to the January 2, 2018 loss was not brought until April 2022, the claim is untimely and is therefore dismissed with prejudice pursuant to CPLR §3211(a)(1). II: CPLR §3211(a)(7) Furthermore, Defendant argues that with respect to the alleged loss in September 2021, Plaintiff did not have coverage on the property through Defendant’s company and that Plaintiff has not adequately pled the existence of a contract between Plaintiff and Defendant. Accordingly, Defendant seeks to have the September 2021 claim dismissed pursuant to CPLR §3211(a)(7) for failing to state a cause of action. CPLR §3211(a)(7) states that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. Courts reviewing a pre-answer motion to dismiss must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiff every possible favorable inference. The complaint must only adequately alleged facts to fit any cognizable legal theory. Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d 236, 238 (2021); Doe v. Bloomberg L.P., 36 N.Y.3d 450, 454 (2021) quoting Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 38 (2018). Motions to dismiss deal merely with the sufficiency of the pleadings, not the ability of the plaintiff to prove the case. Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 38 (2018) quoting David v. Boeheim, 24 N.Y.3d 262, 268 (2014). If the Court determines that the plaintiff is entitled to relief on any reasonable view of the facts, the complaint is to be deemed legally sufficient. Aristy-Farer v. State of New York, 29 N.Y.3d 501, 509 (2017). Dismissal of a complaint is appropriate where the allegation consists of bare legal conclusions that fail to assert facts in support of an element of the claim or where the factual allegations and inferences to be drawn from them do not permit an enforceable right of recovery. Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 (2017). A prima facie claim for breach of contract requires the plaintiff to establish that the defendant breached a binding agreement between the parties resulting in damage to the plaintiff. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 488 (2016); Magee-Boyle v. Reliastar Life Ins. Co. of N.Y., 173 A.D.3d 1157, 1159 (2d. Dep’t 2019); Junger v. John V. Dinan Assoc., Inc., 164 A.D.3d 1428, 1430 (2d. Dep’t 2018). Here, Plaintiff fails to demonstrate that he had a contractual relationship with Defendant in September 2021. As explained by Defendant and uncontroverted by Plaintiff, no policy existed between them in September 2021. The only policy mentioned by Plaintiff expired in October 2018. The Defendant cannot be held liable for breaching a contract that did not exist between Defendant and Plaintiff in September 2021. By failing to allege a contract agreement, Plaintiff has failed to establish an element of a claim for breach of contract. Therefore, pursuant to CPLR §3211(a)(7), Plaintiffs cause of action for September 2021 is dismissed with prejudice. III: CONCLUSION Accordingly, Defendant’s motion to dismiss is granted in its entirety and this action is dismissed with prejudice. This constitutes the final Decision and Order of this Court. Dated: July 27, 2022
