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Van Loan v. Hartford Accident and Indemnity Co.


December 22, 2006


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff Edward J. Van Loan ("Plaintiff") commenced this action in state court alleging breach of an insurance contract by Defendant Hartford Accident and Indemnity Company ("Defendant"). See Compl. [dkt. # 1]. Defendant removed the action to this court based upon diversity jurisdiction. See Not. of Removal [dkt. # 1]. Defendant now moves for summary judgment pursuant Fed. R. Civ. P. 56 seeking to dismiss the entire action. For the reasons that follow, that motion is granted and the action is dismissed.


It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). While the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d. Cir. 1998). Further, a party cannot rely on inadmissible hearsay in opposing a motion for summary judgment. Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)(citations omitted); see also Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999), abrogated on other grounds, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)( "A court may [ ] strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements."). As one legal treatise has succinctly stated, summary judgment requires the parties to "put up or shut up." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)(quoting Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure 150 (2d ed. 1977)).

In support of its motion, Defendant has filed a Notice of Motion, a Memorandum of Law, and a "Statement of Undisputed Material Facts In Support of Defendant's Motion for Summary Judgment" as required by the Northern District of New York's Local Rule 7.1. See N.D.N.Y.L.R. 7.1(a),*fn1 (a)(3).*fn2 Defendant's Local Rule 7.1(a)(3) Statement ("Def. L.R. 7.1 Stat.") is properly supported.*fn3 In opposition, Plaintiff, who is represented by counsel, filed only his own affidavit with several letters attached. See dkt. # 11. Plaintiff filed no opposing Memorandum of Law or any responsive Statement of Material Facts as required by the Local Rules. See N.D.N.Y.L.R. 7.1(a), (a)(3).*fn4

The Court declines to guess at Plaintiff's legal theories or to sift through his affidavit and attachments in an effort to find disputed questions of material fact. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that FED. R. CIV. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.")(citations omitted); Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Court's Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts" and the Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted). Rather, the Court deems the properly supported allegations in Defendant's L.R. 7.1 Statement admitted for purposes of this motion. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitting a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998)(per curiam)(accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F. Supp.2d 104, 108 (N.D.N.Y. 2000)(deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations -- specific or otherwise -- to the record")(emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y. 1999)(McAvoy, J.)("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted"); Osier v. Broome County, 47 F. Supp.2d 311, 317 (N.D.N.Y. 1999) (McAvoy, J.)(deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where "plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record").

Inasmuch as all of the allegations in Defendant's L.R. 7.1 Statement are properly supported with record citations, Defendant's L.R. 7.1 Statement is adopted in its entirety. Even though the facts are uncontested, the Court nonetheless construes them in the light most favorable to Plaintiff, and resolves all ambiguities and draws all reasonable factual inferences in Plaintiff's favor. Michalski v. The Home Depot, Inc., 225 F.3d 113, 115 (2d Cir. 2000).


Familiarity with the contents of Defendant's L.R. 7.1 Statement is presumed, and the Court will repeat only those facts that are pertinent to the instant Decision and Order.

Defendant issued policy number 22 UUV DF7694 ("the Policy"), effective June 1, 2001 to June 1, 2002 to Plaintiff for certain personal property and equipment located at RD#1, Jefferson, New York 12093 ("Insured Location"). Def. L.R. 7.1 Stat. ¶ 1. The Policy provides, subject to its terms, certain limited coverage for (1) personal property under the Property Choice Coverage, and (2) equipment under the Commercial Inland Marine Coverage, located at the Insured Location. Id. ¶ 2. With respect to both the Property Choice Coverage and the Commercial Inland Marine Coverage, the Policy contains a two-year suit limitation. Id. ¶¶ 5-7.

"On October 17, 2001, Mr. Van Loan sustained a fire loss at the Insured Location, and had first knowledge of the loss or damage on that date, and reported the claim that is the subject of this lawsuit to Hartford on or around that date." Id. ¶ 8. From the date of the fire, Plaintiff was represented by a Public Adjuster, InterClaim Worldwide Claims Consultants ("InterClaim"), in the presentation of the claim. Id. ¶ 9. On October 20, 2001, Defendant acknowledged receipt of the claim and reserved all of its rights in connection with the investigation of the claim. Id.¶ 10. On October 26, 2001, Defendant advised Plaintiff and InterClaim that the Policy did not provide any coverage for the buildings that were damaged by the fire. Id. ¶ 11. Defendant "thoroughly investigated the claim presented, and made a $10,000.00 advance payment." Id. ¶ 12. However, Plaintiff and InterClaim "were slow in presenting the claim and supports therefor." Id.¶ 13.

On June 6, 2003, Defendant provided InterClaim "a complete calculation of the claim presented as adjusted by Hartford." Id. ¶ 14. Defendant asked InterClaim to review the calculation and contact Defendant to discuss the loss in detail. Id. ¶ 15. On September 29, 2003, Defendant wrote to InterClaim to follow up on the claim calculation and "to see if there was agreement on the calculation and if the claim might then be concluded." Id. ¶ 16.

On December 11, 2003, Defendant again wrote to InterClaim and Plaintiff and advised them "that because the two-year suit limitation had passed, Hartford was closing its file." Id. ¶¶ 17-18. Neither Plaintiff nor anyone acting on his behalf, including InterClaim, ever requested an extension of the suit limitation under the Policy. Id. ¶ 19. Neither Plaintiff nor anyone acting on his behalf, including InterClaim, contacted Defendant in response to the December 11, 2003 letter or the notification of Defendant's reliance on the suit limitation until August 8, 2005. Id. ¶ 20. Plaintiff commenced suit for recovery under the Policy on September 9, 2005, over three (3) years and ten (10) months after the fire. Id. ¶ 21.


The Policy contains a valid and enforceable two-year limitations period in which to commence suit for alleged breach of the terms of the Policy. See Def. L.R. 7.1 Stat. ¶¶ 5-7; see also N.Y. Ins. Law § 3404(e)(imposing a standard 24-month limitations period for fire insurance policies in New York) ; N.Y.C.P.L.R. § 201 ("An action . . . must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement."); Schunk v. New York Centr. Mut. Fire Ins. Co., 237 A.D.2d 913, 914 (4th Dep't 1997) ("The breach of contract cause of action is also barred by the provision in the policy requiring that an action be commenced within two years after the date of the loss. Such limitations periods are enforceable.") (citing cases); Van Hoesen v. Pennsylvania Millers Mut. Ins. Co., 86 A.D.2d 733, 733 (3rd Dep't 1982)(The 2-year policy limitation imposed pursuant to former N.Y. Ins. Law § 168(5), now N.Y. Ins. Law § 3404, is constitutional and valid.). It is undisputed that Plaintiff was aware of the fire loss on October 17, 2001. It is also undisputed that neither Plaintiff nor anyone acting on his behalf ever requested an extension of the suit limitation under the Policy, and that Plaintiff commenced suit for recovery under the Policy on September 9, 2005.

The action was commenced more than a year and ten months after the suit limitation under the Policy expired, and Plaintiff has provided no legal or factual basis to apply any exception to this limitations period. At most, Plaintiff relies upon inadmissable hearsay in an apparent attempt to create a question of fact as to whether the limitations period should be strictly applied. See Van Loan Aff. ¶ 7 ("I was continuously told by Interclaim that they were negotiating this claim with Hartford."); ¶ 8 ("I was told by Interclaim, at the time this action was commenced, that the Hartford's representative stated . . . that they had misplaced the claim . . . ."). Because hearsay is insufficient to defeat a properly supported motion for summary judgment, and because the Court declines to guess at what legal theory Plaintiff is attempting to support with the hearsay, the Court finds no reason to toll the expiration of the contractual limitations period. See Near v. Nationwide Mut. Fire Ins. Co., 17 A.D.3d 331, 331 (2nd Dep't 2005);*fn5

Van Hoesen, 86 A.D.2d at 733.*fn6 Therefore, Defendant's motion for summary judgment must be granted. Near, 17 A.D.3d at 331.


For the reasons discussed above, Defendant's motion for summary judgment is GRANTED and the action is DISMISSED.


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