Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered March 29, 2006, deemed an appeal from a judgment entered on April 25, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 29, 2006 order granting defendant's motion for summary judgment, dismissed the action and awarded defendant $90 in costs and disbursements.

Judgment affirmed without costs.

In an action to recover damages for breach of an insurance policy, defendant moved for summary judgment on the ground that the action was barred by a two-year limitations period which was contained in the insurance policy issued to plaintiff (see
CPLR 201; H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98 [1992]). Defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating, through the affidavit of its claims adjuster, that plaintiff had failed to commence the action within the shorter time period agreed to by the parties (see Grumman Corp. v Travelers Indem. Co. 288 AD2d 344 [2001]; Varga v Liberty Mut. Ins. Co., 157 AD2d 1007 [1990]). In opposition, plaintiff contended, inter alia, that defendant's negotiations with plaintiff and defendant's partial payments demonstrated an intent by defendant to make full payment on the claim. The court granted defendant's motion, and a judgment was subsequently entered dismissing the action and awarding defendant $90 in costs and disbursements.

In our opinion, plaintiff's opposition papers failed to raise a triable issue of fact as to whether defendant either waived or was estopped from asserting the limitations defense. "Waiver is an intentional relinquishment of a known right and should not be lightly presumed" (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). "Evidence of communications of settlement negotiations between an insured and its insurer either before or [*2]after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel" (id.). In view of the foregoing,
defendant's motion for summary judgment was properly granted and the judgment entered pursuant thereto is affirmed.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 21, 2007