           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

35
CA 13-00639
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


SVETLANA BALUK AND MARK OSILOVSKIY,
PLAINTIFFS-APPELLANTS,

                     V                              MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


MICHELE E. DETRAGLIA, UTICA, FOR PLAINTIFFS-APPELLANTS.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MARCO
CERCONE OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (David
A. Murad, J.), entered December 24, 2012. The order granted the
motion of defendant to dismiss the complaint and denied the cross
motion of plaintiffs for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action alleging that
defendant breached its obligations under their homeowner’s policy when
it failed to reimburse them fully for sums they expended to repair or
replace damage to their residence resulting from “puff-back” from
their malfunctioning furnace. Supreme Court properly denied
plaintiffs’ cross motion seeking summary judgment and granted
defendant’s motion to dismiss the complaint based upon plaintiffs’
failure to commence this action within two years after the date of
loss, as the policy required (see 1840 Concourse Assoc., LP v
Praetorian Ins. Co., 89 AD3d 592, 592, lv denied 19 NY3d 809; Klawiter
v CGU/OneBeacon Ins. Group, 27 AD3d 1155, 1155). Plaintiffs’ reliance
upon Bakos v New York Cent. Mut. Fire Ins. Co. (83 AD3d 1485) is
misplaced inasmuch as the insured in Bakos timely commenced that
action within two years of the date of loss.




Entered:   February 7, 2014                       Frances E. Cafarell
                                                  Clerk of the Court
