CARNI, J.
This appeal presents the issue whether the one-year extension of time in CPLR 210 (a) to commence an action that is afforded to a decedent's representative applies to the standard two-year period of limitations contained in homeowner's insurance policies, such as defendant's policy, pursuant to Insurance Law § 3404 (e). For the reasons that follow, we conclude that Supreme Court properly determined that it does and thus that the order denying defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) should be affirmed.
The underlying facts are not in dispute. On February 18, 2005, defendant issued a homeowner's policy to plaintiff's decedent. On December 5, 2005, while the policy was in effect, the insured premises and its contents were destroyed by fire. On October 31, 2006, defendant denied decedent's claim for policy benefits and, on July 5, 2007, decedent died. On May 16, 2008, plaintiff was issued letters testamentary appointing her as the executor of the insured's estate. On July 3, 2008, plaintiff commenced this action as executor of decedent's estate, seeking to recover under the policy. The "conditions" section of the policy provides in relevant part that "[n]o action can be brought [against us] unless the action is started within two years after the date of loss."
Here, when measured from the date of the loss, i.e., December 5, 2005, the action, which as noted was commenced on July 3, 2008, exceeded the two-year period of limitations. Plaintiff contends, however, that the tolling provision of CPLR 210 (a) extended her time in which to commence this action until one year after decedent's death, or until July 5, 2008. We agree.
CPLR 210 (a), entitled "Death of claimant," states: "Where a person entitled to commence an action dies before the expiration
Our review of the applicable case law in New York State discloses that the courts have uniformly applied tolling provisions to the two-year period of limitations contained in policies of insurance in accordance with Insurance Law § 3404 (e). In S & J Deli v New York Prop. Ins. Underwriting Assn. (119 A.D.2d 652 [1986]), the Second Department rejected the defendant insurer's contention that the period of limitations was a "condition precedent" and held that "[t]he toll contained in CPLR 203 (b) (5) is directly applicable to the limitations period set forth in a fire insurance policy" (id.). In addition, the First Department applied the "[i]nfancy, insanity" toll contained in CPLR 208 to the two-year period of limitations in an insurance policy (Bookstein v Republic Ins. Co., 266 A.D.2d 113 [1999]).
We reject defendant's "condition precedent" theory inasmuch as the cause of action to recover damages for breach of contract based on a fire or a homeowner's insurance policy existed at common law and was not created by the insurance statute containing the two-year period of limitations (see S & J Deli, 119 A.D.2d 652 [1986]; Insurance Law § 3404 [e]).
We therefore conclude that the "death toll" in CPLR 210 (a) is applicable to an action against an insurer where the policy at
Accordingly, we conclude that the order should be affirmed.
It is hereby ordered that the order so appealed from is unanimously affirmed, without costs.