Monroe Shopping Center, Inc. v. Utica Mutual Insurance

In an action, inter alia, to declare that certain damage to plaintiffs’ septic tank system is covered under the policy of insurance issued by defendant, defendant appeals from an order of the Supreme Court, Orange County, dated July 21, 1977, which denied its motion for summary judgment on the ground that the action had not been timely commenced. Order reversed, on the law, with $50 costs and disbursements, and motion granted. In our opinion the provision on page two of the policy, that "No suit or action on this policy * * * shall be sustainable in any court of law or equity- * * * unless commenced within twelve months next after inception of the loss”, applies to the "Vandalism or Malicious Mischief Endorsement”. Thus, on the undisputed facts, the instant action is time-barred (see Proc v Home Ins. Co., 17 NY2d 239; Margulies v Quaker City Fire & Mar. Ins. Co., 276 App Div 695). We disagree with respondents’ contention that the liberalization clause contained in the policy requires retroactive application of the 1975 amendment to section 168 of the Insurance Law (L 1975, ch 560, § 1, eff Sept. 1, 1975), which changed the standard fire insurance policy’s one-year Statute of Limitations to two years (see Char-Mo Investors v Market Ins. Co., 58 AD2d 589, affd 44 NY2d 793). We find no merit to respondents’ estoppel contentions (see Sciarrillo v North Riv. Ins. Co., 61 AD2d 1112). Shapiro, J. P., Cohalan, Margett and O’Connor, JJ., concur.