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Vitrano v. State Farm Insurance Co.

July 7, 2008


The opinion of the court was delivered by: John G. Koeltl, District Judge


The plaintiff, Richard Vitrano, proceeding pro se, brings this diversity action against State Farm Insurance Company ("State Farm"). The plaintiff principally seeks compensatory and punitive damages allegedly arising out of State Farm's failure to pay his claim under a renters insurance policy. The plaintiff asserts several causes of action against the defendant, including breach of contract, unjust enrichment, breach of implied warranty, fraud, breach of good faith and fair dealing, and bad faith refusal to settle a claim. The defendant now moves to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.


In evaluating a motion to dismiss, a court may consider the allegations on the face of the complaint, documents appended to the complaint or incorporated in the complaint by reference, and documents upon which the complaint "solely relies" and which are "integral to [it]". See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, "[i]f, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). Both parties have filed documents and affidavits in connection with their pending motions.*fn1 Accordingly, the defendant's Rule 12(b) motion is converted into a motion for summary judgment under Rule 56.

Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Matican v. City of New York, 524 F.3d 151, 154 (2d Cir. 2008). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); Gallo, 22 F.3d at 1223. In addition, the Court must give a pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). The Court must "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest." Id. (internal quotation marks and citation omitted).


There is no dispute as to the following facts, except as noted.

On April 26, 2005, the plaintiff was arrested by federal agents. While incarcerated, the plaintiff contacted State Farm to notify the company of the alleged theft of his property from his vacant apartment, and to file a claim under a State Farm insurance policy that he had purchased in 2003 and that was still in effect at the time of his arrest.*fn2 (See Newman Aff. ¶¶ 4--5; Compl. ¶¶ 4, 14.) On December 27, 2006, the plaintiff mailed an itemized claim to the State Farm agent, listing goods the plaintiff estimated as having a value of $167,175. (Compl. Ex. H.) On February 2, 2007, State Farm notified the plaintiff that it was investigating the claim. (Compl. Ex. I.) Pursuant to the investigation, a State Farm Insurance Investigator interviewed the plaintiff in March 2007. (Compl. ¶ 22.)

On October 16, 2007, State Farm advised the plaintiff that his claim was denied. (Compl. Ex. K.) State Farm stated that the plaintiff's insurance policy did not extend to theft, and that the plaintiff had violated the conditions of the policy by not providing immediate notice of the loss and by failing to cooperate with the company's requests for supporting documentation. In addition, State Farm stated that the plaintiff had not demonstrated an insurable interest in the property allegedly stolen and that the submission of the claim violated the policy provisions relating to concealment or fraud. Finally, as required by New York insurance regulations, State Farm notified the plaintiff that any lawsuit against the company must be brought within two years of the date of loss, pursuant to an endorsement to the plaintiff's insurance policy. Id.

The plaintiff filed this action no earlier than November 19, 2007, the date the complaint is dated.*fn3 The complaint seeks compensatory damages amounting to more than $150,000, plus interest, as well as costs, attorney fees, and punitive damages in excess of one million dollars.


The defendant argues that the plaintiff's action is time barred under the terms of the insurance contract. The amendatory endorsement to the policy states that "[n]o action shall be brought unless . . . the action is started within two years after the occurrence causing loss or damage." (Newman Aff. Ex. A.) According to the defendant, the plaintiff's purported loss occurred on April 26, 2005, the date on which the federal agents allegedly seized the plaintiff's property, and therefore the plaintiff had two years from that date to file this lawsuit. Even assuming the loss occurred on October 5, 2005, the date the plaintiff claims he first filed notice of his loss, the defendant argues that the suit is still time-barred by the two-year period of limitations imposed by the contract.

New York Law generally allows parties to a contract six years to file suit for an alleged breach of contract. N.Y. C.P.L.R. § 213(2).*fn4 However, parties to a contract may agree to shorter limitations periods, which are normally enforceable when they are reasonable and in writing. See John J. Kassner & Co. v. City of New York, 389 N.E.2d 99, 103 (N.Y. 1979). Limitations periods as short as twelve months in insurance policies have been enforced. See, e.g., Blitman Const. Corp. v. Insurance Co. of N. Am., 489 N.E.2d 236, 237--38 (N.Y. 1985). Similarly, courts have enforced provisions where the limitations period runs from the date the loss occurred, and not from the date the claim was made or denied. See, e.g., Lichter Real Estate No. 3, L.L.C. v. Greater N.Y. Ins. Co., 841 N.Y.S.2d 93, 94 (App. Div. 2007). Failure to comply with a contractual limitations period will subject a breach of contract suit to dismissal, unless the plaintiff can show that the suit falls within an exception to the limitations period. See Enterprise Eng'g, Inc. v. Hartford Fire Ins. Co., No. 04 Civ. 5018, 2004 WL 2997857, at *2 (S.D.N.Y. Dec. 23, 2004) (quoting Minichello v. N. Assurance Co. of Am., 758 N.Y.S.2d 669, 670 (App. Div. 2003)). For example, if the plaintiff can demonstrate that the plaintiff was misled or lulled by the defendant into failing to bring the claim in a timely manner, the defendant may be equitably estopped from relying on the contractual limitations period. See id. at *3 (citing Satyam Imports, Inc. v. Underwriters at Lloyd's, No. 03 Civ. 4387, 2003 WL 22349668, at *2 (S.D.N.Y. Oct. 14, 2002)).

In this case, there are material issues of fact with respect to whether the defendant should be equitably estopped from relying on the policy provision. In his affidavit, the plaintiff alleges that Steve Nassivera, the State Farm Investigator who interviewed the plaintiff in March 2007, turned off his tape recorder during the interview, told the plaintiff that the claim would be paid, and asked the plaintiff to "please be patient." (Pl.'s Aff. ¶ 11.) In a responsive affidavit, Nassivera denies that he turned off his tape recorder or made these statements, but the conflicting allegations create an issue of fact as to whether the defendant misled or lulled the plaintiff into not bringing a timely claim. (Nassivera Aff. ¶ 5, Ex. 2 to Newman Aff.) Similarly, while State Farm sent at least two letters to the plaintiff or his representative subsequent to his filing the insurance claim, indicating that State Farm was investigating the alleged loss without waiving its rights, neither letter in any way indicated that the plaintiff had to file suit within two years of his loss, even though the letters, dated February 2, 2007 and September 25, 2007, respectively, were close to or after the deadline for filing such suit. Moreover, in the actual claim denial letter, dated October 16, 2007, State Farm reminded the plaintiff of his obligation to bring suit ...

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