The opinion of the court was delivered by: Miriam Goldman Cedarbaum, United States District Judge
This action is brought for failure to pay under a jewelers block insurance policy for loss caused by theft. The action was filed on May 6, 2002 and the parties have waived the right to a jury. Defendants have asserted that the action is untimely because it was filed after a contractual limit on the time for filing suit. Because the issue of timeliness might be dispositive, I ordered a separate trial of this issue under Fed.R.Civ.P. 42(b) with the consent of the parties and in the interest of expedition and economy.
The insurance policy requires that plaintiff sue within one year of the date of loss, in this case, by December 24, 2001. By letter dated December 17, 2001, defendants agreed to extend the time for filing suit until April 23, 2002. Plaintiff contends that the attorney for the defendants, Patrick Corbett, agreed by telephone on April 24, 2002, one day after the filing deadline had passed, to further extend the time for filing. Defendants respond that Corbett did not agree to such an extension, but rather advised plaintiff's office that he would have to check with his client before he could agree. On May 9, 2002, Corbett sent a letter to plaintiff's counsel, advising him that his client had refused a further extension.
On April 29, 2003, I held a separate trial of the issue of whether this action was filed timely. Defendant called one witness: Lawrence Newman, counsel for plaintiff. Plaintiff presented three witnesses: Corbett; Ana Araujo, Newman's legal secretary and office manager; and Sandy Lasinger, Newman's receptionist. Araujo testified that she left a telephone message for Corbett on April 23, 2002, requesting an extension of time. She testified that later that day she mailed a letter to Corbett requesting an extension, and faxed a copy of that letter to Corbett the next day. Lasinger testified that she received a telephone call from Corbett on April 24, during which Corbett agreed to extend the time limit. Lasinger testified that during the call she placed Corbett on hold and told Araujo that Corbett had agreed to the extension. Lasinger testified that Araujo told Lasinger that they would need to get something in writing from Corbett, and Lasinger then ended the call with Corbett. Araujo confirmed that she had this exchange with Lasinger during Lasinger's call with Corbett.
Corbett did not dispute that he telephoned Newman's office on April 24. However, Corbett testified that he did not agree to grant the extension of time, but rather stated that he would need to consult with his client before he could agree to such an extension. Corbett's time record for April 24 states that he telephoned Newman's office to advise counsel that he must speak with The Underwriters, his client.
After hearing the four witnesses, observing their demeanors, evaluating their credibility, and weighing all of the evidence, I make the following findings of fact. I do not credit the testimony of Lasinger that Corbett did not state that he needed to consult his client before agreeing to an extension of time. I do credit Corbett's testimony that he informed Lasinger that he needed to consult his client before he could agree to an extension of time. Therefore, I find that defendants did not agree to further extend the time limit for filing suit. Because plaintiff filed this action after the April 23, 2002 deadline, the action is untimely. The Clerk is directed to enter judgment dismissing the action.
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