Cline, Davis & Mann, Inc. v. Travelers Insurance Co. , 661 N.Y.S.2d 958 ( 1997 )

Order, Supreme Court, New York County (Stephen Crane, J.), entered November 4, 1996, which, in an action on a property insurance policy, insofar as appealed from, denied defendant insurer’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In light of the nonwaiver agreement contained in the March 24, 1995 facsimile communication, the terms of which plaintiff accepted, we agree that there are outstanding factual issues as to the actual date the covered property was lost and whether defendant waived its objection to the timeliness of the claim, precluding summary application of the policy’s two-year limitations period. There are also outstanding factual issues as to when plaintiff should have realized that the covered property might be lost, which preclude summary application of the policy’s prompt notice provision (see, Clute v Harder Silo Co., 42 AD2d 818; Silverman v Massachusetts Mut. Life Ins. Co., 6 AD2d 92). Concur—Sullivan, J. P., Rosenberger, Ellerin, Williams and Mazzarelli, JJ.