United States District Court, N.D. New York
EDMUND G. SANDERSON, Plaintiff,
FIRST LIBERTY INSURANCE CORPORATION, Defendant.
G. SANDERSON Plaintiff, Pro
GOLDBERG, SEGALLA LAW FIRM JONATHAN SCHAPP, ESQ. SHARON
ANGELINO, ESQ. Attorneys for Defendant
MEMORANDUM-DECISION and ORDER
N. HURD United States District Judge
an insurance coverage dispute between pro se plaintiff Edmund
G. Sanderson ("Sanderson" or "plaintiff")
and defendant First Liberty Insurance Corporation
("First Liberty" or "defendant"), his
homeowner's insurance carrier. Plaintiff purchased
homeowner's insurance policy number H36-228-085080-70
from defendant to cover his home in Plattsburgh, New York.
The policy's effective period ran between January 25,
2013 and January 25, 2014.
relevant here, the policy provided that "[n]o action can
be brought against [the insurer] unless . . . the action is
started within two years after the inception of the
loss." The policy further explained that, for purposes
of this limitation, "inception of the loss" means
"the date on which the direct physical loss or damage
occurred." See Townsend Decl. Ex. B, ECF No.
January 7, 2014, Sanderson "discovered" some water
and mold property damage at his home. Plaintiff initially sought
coverage for the loss from First Liberty in accordance with
the policy and was assigned claim number 028787581. However,
relations between the parties eventually broke down and
plaintiff determined that a lawsuit would be the appropriate
future course of action.
January 6, 2016, Sanderson attempted to initiate suit in
state court-he filed a Summons with Notice in Supreme Court,
Clinton County, under index number 2016-00000023.
Plaintiff's Summons with Notice named "Liberty
Mutual Insurance" as the defendant in the action, but
plaintiff did not serve this summons on defendant.
4, 2016, Sanderson filed an Amended Summons with Notice in
Supreme Court under the same index number. This time,
plaintiff's Amended Summons with Notice named "First
Liberty Insurance Corporation" as the defendant in the
action. And this time, plaintiff effected service on
defendant through the New York State Department of Financial
Services in accordance with New York Insurance Law §
6, 2016, First Liberty removed the action to the U.S.
District Court for the Northern District of New York and
thereafter moved to dismiss the action under Federal Rule of
Civil Procedure ("Rule") 12(b)(4) and
Plaintiff opposed and cross-moved under Rules 4 and 15
seeking leave to amend or correct his Amended Summons with
Notice to relate back to the date of his original filing of
the Summons with Notice. Both motions have been fully briefed
and will be considered on the basis of the submissions
without oral argument.
Liberty contends this whole action must be dismissed because
Sanderson ran afoul of the two-year statute of limitations in
his homeowner's policy, a limitations period which
expired on January 7, 2016. According to defendant,
plaintiff's original filing in state court on January 6
was defective because it incorrectly used defendant's
trade name and, more importantly, was never served on
opposition sets forth in significant detail his underlying
rationale for first selecting "Liberty Mutual
Insurance" as the name of the defendant in the state
action. Plaintiff's declaration further explains that he
undertook diligent efforts-including several calls and visits
to the Clinton County Clerk's Office, various
communications with First Liberty's representatives and
counsel, and even attempts to contact New York State's
Department of Financial Services-to navigate his way through
the state court's filing and service requirements.
considering the matter, First Liberty's bid for outright
dismissal under these circumstances is rejected. As defendant
appears to acknowledge, the Federal Rules of Civil Procedure
"apply to civil actions removed to the United States
district courts and govern procedure after removal."
Fed.R.Civ.P. 81(c); see also 14C Federal
Practice & Procedure § 3738 (4th ed.)
("After the removal of an action from state ...