COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (MEGAN E.
GRIMSLEY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND TROUTMAN, JJ.
from an order of the Supreme Court, Oswego County (Norman W.
Seiter, Jr., J.), entered December 21, 2015. The order, inter
alia, granted in part the cross motion of defendant for
hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting that part of plaintiff's
motion seeking to dismiss defendant's affirmative defense
of expiration of the two-year limitations period set forth in
the policy, denying defendant's cross motion in its
entirety and reinstating the complaint with respect to the
loss of September 24, 2009 and granting that part of
plaintiff's motion to compel defendant to produce
unredacted claim notes for the September 24, 2009 claim
through the date of the denial letters, September 30, 2011,
and as modified the order is affirmed without costs.
Plaintiff's residence, which was insured by a
homeowner's insurance policy issued by defendant, was
burglarized on September 24, 2009 (2009 loss) and again on
June 6, 2010 (2010 loss). After each theft, plaintiff filed a
claim with defendant seeking coverage for the loss, and
defendant disclaimed coverage for both losses on September
30, 2011. Plaintiff thereafter commenced this action,
alleging that defendant had breached the terms of the
insurance policy and seeking a declaration that the insurance
policy issued by defendant provided coverage for the subject
losses. Defendant moved to dismiss the complaint and appealed
from an order insofar at it denied that part of the motion
seeking dismissal of the first cause of action, for a
declaratory judgment. We affirmed (Lobello v New York
Cent. Mut. Fire Ins. Co., 112 A.D.3d 1287).
discovery, during which defendant repeatedly failed to
provide documents in a timely manner or at all, plaintiff
moved for various forms of relief, including an order
striking defendant's answer based on discovery
violations. Defendant cross-moved for summary judgment
dismissing the complaint, contending, inter alia, that
plaintiff was barred by the policy's two-year limitations
period from recovery for any claims related to the 2009 loss.
Supreme Court granted plaintiff's motion in part,
ordering defendant to pay plaintiff $1, 500 as costs and
sanctions for discovery violations and to provide plaintiff
with claim notes for only the 2010 loss, with the redactions
modified. The court denied those parts of plaintiff's
motion that sought a declaration that the denials of coverage
were invalid, an order directing defendant to provide
plaintiff with unredacted claim notes for the 2009 loss and
an order granting plaintiff leave to serve an amended
complaint. In addition, the court granted that part of
defendant's cross motion "with regard to the 
loss" only. We conclude that the court should have
denied defendant's cross motion in its entirety, and we
therefore modify the order accordingly.
to plaintiff's contention, the court did not abuse its
discretion in imposing only a monetary sanction on defendant
for its failure to disclose all of its claim notes. That
penalty was " commensurate with the particular
disobedience it [was] designed to punish' "
(Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global
Strat Inc., 22 N.Y.3d 877, 880; see Getty v
Zimmerman, 37 A.D.3d 1095, 1097; see also Burchard v
City of Elmira, 52 A.D.3d 881, 881-882). Contrary to
plaintiff's further contention, he was not entitled to
summary judgment on the ground that defendant allegedly
violated Insurance Law § 2601 inasmuch as an alleged
violation of Insurance Law § 2601 "does not give
rise to a private cause of action" (Litvinov v
Hodson, 34 A.D.3d 1332, 1333; see generally Rocanova
v Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603,
agree with defendant that the court properly denied that part
of plaintiff's motion in which he sought leave to amend
his complaint to assert a cause of action alleging
defendant's violation of General Business Law § 349.
"A plaintiff under section 349 must prove three
elements: first, that the challenged act or practice was
consumer-oriented; second, that it was misleading in a
material way; and third, that the plaintiff suffered injury
as a result of the deceptive act" (Stutman v
Chemical Bank, 95 N.Y.2d 24, 29). We conclude that this
action is "essentially a private' contract dispute
over policy coverage and the processing of a claim which is
unique to these parties, not conduct which affects the
consuming public at large" (New York Univ. v
Continental Ins. Co., 87 N.Y.2d 308, 321; see
generally Oswego Laborers' Local 214 Pension Fund v
Marine Midland Bank, 85 N.Y.2d 20, 25). The fact that
defendant may have disclaimed coverage after the two-year
policy period "in a few [other] cases... within the last
 years is insufficient" to establish a cause of
action under General Business Law § 349 (JD & K
Assoc., LLC v Selective Ins. Group Inc., 143 A.D.3d
1232, 1234; cf. Ural v Encompass Ins. Co. of Am., 97
A.D.3d 562, 564-565; Shebar v Metropolitan Life Ins.
Co., 25 A.D.3d 858, 859).
agree with plaintiff, however, that the court erred in
granting that part of defendant's cross motion that
sought summary judgment dismissing the complaint with respect
to the 2009 loss as time-barred. The policy issued to
plaintiff provides that no action can be brought against
defendant unless, inter alia, the action "is started
within two years after the date of loss." The policy
contains no definition for the term "loss, " but it
defines an occurrence as "an accident... which results,
during the policy period, in... Bodily injury'; or...
Property damage.' "
commenced this action more than two years after the 2009
theft. Interpreting the phrase "date of loss" as
the date on which the theft occurred, defendant contends that
the action is time-barred under the terms of the policy.
Plaintiff, on the other hand, interprets the phrase
"date of loss" as the date on which the claim was
denied and, as a result, contends that the action was timely
commenced. We agree with plaintiff. Despite cases holding
that "date of loss" means the date of the
underlying catastrophe, including cases from this Department
(see Baluk v New York Cent. Mut. Fire Ins. Co., 114
A.D.3d 1151; Klawiter v CGU/One Beacon Ins. Group,
27 A.D.3d 1155), the Court of Appeals has found a distinction
between the generic phrase "date of loss, " and the
term of art "inception of loss" (see Medical
Facilities v Pryke, 95 A.D.2d 692, 693, affd 62
N.Y.2d 716; Proc v Home Ins. Co., 17 N.Y.2d 239,
243-244, rearg denied 18 N.Y.2d 751; Steen v
Niagara Fire Ins. Co., 89 NY 315, 322-325). As the
Second Circuit noted in Fabozzi v Lexington Ins. Co.
(601 F.3d 88, 91), those cases have not been overruled or
disavowed in any way.
as the First Department recognized in Medical
Facilities, "nothing in [Proc] suggests an
intention to alter [the] general rule" (95 A.D.2d at
693), which is "that an action for breach of contract
commences running at the time the breach takes place"
(id.). Thus, only the very specific "inception
of loss" or other similarly "distinct
language" permits using the catastrophe date as the
limitations date (Steen, 89 NY at 324; see
Medical Facilities, 95 A.D.2d at 693). Here, the policy
did not contain the specific "inception of loss" or
other similarly distinct language, and we thus disavow our
decisions in Baluk and Klawiter to the
extent that they hold otherwise.
as " [a]mbiguities in an insurance policy are to be
construed against the insurer' " (Dean v Tower
Ins. Co. of N.Y., 19 N.Y.3d 704, 708; see
Steen, 89 NY at 324), we conclude that the two-year
limitations period contained in the policy did not begin to
run until "the loss [became] due and payable"
(Steen, 89 NY at 324; see Cooper v United States
Mut. Benefit Assn., 132 NY 334, 337). As a result, we
conclude that the court erred in granting that part of
defendant's cross motion that sought summary judgment
dismissing the complaint with respect to the 2009 loss, and
we further modify the order by granting that part ...