Lugo v Purple & White Mkts., Inc., 2011 NY Slip Op 01880 [82 AD3d 521]

March 15, 2011

Appellate Division, First Department

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Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L. Ritzert of counsel), for appellants.

O’Connor Redd, LLP, White Plains (Michael P. Hess and Amy L. Fenno of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about August 24, 2009, which, insofar as appealed from, denied defendants/third-party plaintiffs’ (collectively, White Rose) motion for a default judgment against third-party defendant FICA Transportation, Inc. (FICA) and granted FICA’s cross motion to dismiss the third-party complaint to the extent of dismissing White Rose Food’s claim for breach of contract, unanimously affirmed, without costs.

The motion court properly denied White Rose’s motion for a default judgment against FICA and compelled acceptance of FICA’s answer. White Rose’s attempt to serve FICA pursuant to CPLR 3215 (g) (4) (i) was plainly inadequate, as it was not sent to FICA’s last known address.

The motion court also properly dismissed the breach of contract cause of action, brought by White Rose Foods, Inc., for FICA’s failure to obtain insurance coverage. The 2001 agreement, which provided the only basis for a relationship between White Rose Foods and FICA, contained an express provision barring any civil actions brought more than two years after the occurrence giving rise to the claim. Here, the evidence of insurance coverage was to have been provided to White Rose Foods on or about December 19, 2001, making December 2003 the latest this claim for breach could have been brought. Thus, the breach of contract claim is untimely.

We have considered White Rose’s remaining arguments and find them unavailing. Concur—Saxe, J.P., Sweeny, Catterson, Freedman and RomÁn, JJ..