Bergman v. Indemnity Insurance of North America

—Order, Supreme Court, New York County (William J. Davis, J.), entered on or about December 19, 1994, which, inter alia, granted defendant’s motion for reargument, and upon reargument, granted defendant summary judgment dismissing plaintiff’s amended complaint on Statute of Limitations grounds, unanimously reversed, on the law, without costs, defendant’s motion for summary judgment denied and plaintiff’s cross motion for summary judgment dismissing defendant’s first and second affirmative defenses to the amended complaint, which were based upon the Statute of Limitations, granted and the matter remanded for further proceedings. The IAS Court properly held that the amended complaint, which substituted one occurrence, a fire taking place in the insured premises on March 30, 1990, for another occurrence, a fire occurring on May 9,1990, cannot be deemed to relate back to the original complaint pursuant to CPLR 203 (f) (see, Smith v Bessen, 161 AD2d 847, 849; Alpert v Shea Gould Climenko & Casey, 160 AD2d 67, 72-73). While it is conceded that plaintiff was aware of all three fires as early as May 1990, it was his tender of a sworn proof of loss in October 1991, rather than the date of loss, which triggered the running of the applicable two-year period of limitations pursuant to the provisions of the standard fire insurance policy contained in Insurance Law § 3404 (e) (1303 Webster Ave. Realty Corp. v Great Am. Surplus Lines Ins. Co., 63 NY2d 227, 230-231; G.E. Capital Mtge. Servs. v Daskal, 211 AD2d 613, 615). Accordingly, the amended complaint served on September 27, 1993 was timely and plaintiff’s cross motion seeking dismissal of defendant’s Statute of Limitations defenses should have been granted. Inasmuch as the IAS Court did not reach defendant’s other arguments, we remand the matter for further consideration. Motion for reargument granted, and, upon reargument, the prior unpublished decision and order of this Court entered on April 2, 1996 is recalled and vacated, and a new decision and order of this Court is substituted therefor. That portion of the motion wherein leave to appeal to the Court of Appeals is sought is denied. Concur—Sullivan, J. P., Wallach, Kupferman and Tom, JJ.