Argued: February 20, 2013.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Seybert, J.) dismissing with prejudice plaintiff-appellant's complaint seeking, pursuant to an insurance policy, indemnification for property loss caused by fire.
DAVID TOLCHIN, Jaroslawicz & Jaros LLC, New York, New York, for Plaintiff-Appellant.
SCOTT D. STORM, Mura & Storm, PLLC, Buffalo, New York, for Defendant-Appellee.
Before: WINTER, CHIN, and DRONEY, Circuit Judges.
Plaintiff-appellant Executive Plaza, LLC (" Executive" ) appeals from a judgment of the United States District Court for the Eastern District of New York (Seybert, J.) in favor of defendant-appellee Peerless Insurance Company (" Peerless" ), dismissing Executive's claim that it is entitled, under a fire insurance policy, to indemnification from Peerless for the cost of replacing a building damaged in a fire. We assume familiarity with our May 23, 2013, opinion in this case, which sets forth the facts. Exec. Plaza, LLC v. Peerless Ins. Co., 717 F.3d 114 (2d Cir. 2013).
The fire insurance policy issued to Executive by Peerless contains two provisions that are relevant to this appeal. Section E.4 of the Policy provides for a limitations period requiring Executive to file suit to recover for loss or damage within two years of the fire. Section E.6 provides,
however, with respect to replacement costs, that Executive must replace the property before bringing suit and must complete the replacement work " as soon as reasonably possible."
The rebuilding of the fire-damaged property was not completed within the two-year limitations period. Peerless denied coverage on the ground that Executive was time-barred from recovering under the policy. Executive filed suit in New York State Supreme Court, and Peerless removed the suit to the Eastern District of New York.
The district court dismissed Executive's complaint under Federal Rule of Civil Procedure 12(c), concluding that the Policy's limitations provision " unambiguously bars any and all suits commenced more than two years after the date of the damage or loss." See Exec. Plaza, LLC v. Peerless Ins. Co., No. 11-cv-1716, 2012 WL 910086, at *6 (E.D.N.Y. Mar. 13, 2012). Executive appealed, arguing that it could not reasonably complete construction to replace the fire-damaged building within the two-year limitations period.
In our prior opinion, we concluded that New York case law does not clearly resolve the question raised by this case, and we thus certified the following ...