FOX-KNAPP, INC., AND CABLE INDUSTRIES, INC., PLAINTIFFS-APPELLANTS, v. EMPLOYERS MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLEE.

No. 353, Docket 89-7505.United States Court of Appeals, Second Circuit.Argued November 16, 1989.
Decided December 22, 1989.

Henry J. Bergman (Bachner, Tally, Polevoy Misher, New York City, of counsel), for plaintiffs-appellants.

James J. Taylor (Bigham, Englar, Jones Houston, New York City, of counsel), for defendant-appellee.

Appeal from the United States District Court for the Southern District of New York.

Before LUMBARD, FEINBERG and MESKILL, Circuit Judges.

PER CURIAM:

[1] This appeal raises the question whether, under New York law, certain actions taken by an insurance company requiring the insured claims to produce documents and submit to an examination under oath after the expiration of the period provided in the policy for the filing of lawsuits constitute a waiver of the company’s limitations defense. Plaintiffs appeal from a judgment entered in the United States District Court for the Southern District of New York, Haight, J., granting defendant’s motion for summary judgment based on plaintiffs’ late filing of the lawsuit and dismissing plaintiffs’ complaint seeking recovery under an insurance policy for property damage and business interruption losses caused by a fire in plaintiffs’ business premises.

[2] We conclude that the defendant did not waive its limitations defense, as a matter of law, by putting plaintiffs to the expense of submitting to examination under oath and producing documents after expiration of the limitations period.

[3] We affirm the judgment for the reasons stated by Judge Haight in his Memorandum Opinion and Order dated April 14, 1989, filed April 19, 1989, and reported at 725 F.Supp. 706 (S.D.N.Y. 1989).

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