Looby v. Safeco National Insurance Company

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PATRICIA LOOBY,
Plaintiff,
vs. 	1:25-cv-00533
(MAD/PJE)
SAFECO NATIONAL
INSURANCE COMPANY,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
BASCH KEEGAN & SPADA, LLP 	DEREK J. SPADA, ESQ.
307 Clinton Avenue 	NICOLE P. BINI, ESQ.
Kingston, New York 12402
Attorneys for Plaintiff
GOLDBERG SEGALLA LLP 	ASHLYN M. CAPOTE, ESQ.
665 Main Street 	JONATHAN SCHAPP, ESQ.
Buffalo, New York 14203
Attorneys for Defendant
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Patricia Looby ("Plaintiff") filed this action in New York State court on March
13, 2025, lodging claims of fraud and breach of contract against Defendant Safeco National
Insurance Company ("Defendant"). Dkt. No. 2. Defendant removed the action to this Court on
May 1, 2025, on the basis of diversity jurisdiction. Dkt. No. 1. Thereafter, on June 27, 2025,
Defendant filed a motion to dismiss Plaintiff's complaint. Dkt. No. 9. Plaintiff filed an
opposition to the motion on July 18, 2025, Dkt. No. 11, and Defendant filed a reply on July 25,
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2025, Dkt. No. 12. Through her opposition, Plaintiff withdrew three related claims for
consequential damages, punitive damages, and attorneys' fees. Dkt. No. 11 at 12.
Defendant's motion to dismiss is now before the Court, and it raises two principal
arguments for dismissal: (1) Plaintiff's claim is time-barred under the parties' insurance policy,
which necessitates dismissal of the entire complaint; and (2) in the alternative, if the complaint is
deemed timely, the fraud claim should be dismissed for failure to state a claim. Dkt. No. 9-4 at 6.
Although Plaintiff maintains that her complaint is timely and sufficiently pled, her opposition
brief includes a request for leave to amend the fraud claim if the Court finds the pleading
insufficient. Dkt. No. 11 at 11-12.
II. BACKGROUND
According to Plaintiff's complaint, her property in Saugerties, New York was burglarized
"on or about September 3, 2022 and September 4, 2022 . . . ." Dkt. No. 2 at ¶¶ 11-12. At that
time, Plaintiff had an in-effect homeowner's insurance policy through Defendant. Id. at ¶¶ 5-6.
Plaintiff alleges that the policy "provided coverage . . . for, among other things, theft of personal
property, vandalism and losses incurred due to burglary." Id. at ¶ 10.
During the burglary, "numerous items were stolen from [Plaintiff's property]." Id. at ¶ 12.
Accordingly, Plaintiff filed a claim with Defendant and was assigned a claim number. Id. at ¶ 13.
Plaintiff alleges that although she "fully cooperated[,]" Defendant delayed adjustment of her
claim "until on or about January 22, 2025." Id. at ¶¶ 14-15. On or around that date, Defendant
paid Plaintiff $2,186.61. Id. at ¶ 16. Plaintiff contends that her stolen property is worth far more
than that, but she does not allege a specific dollar value or describe the stolen property in the
complaint. Id. at ¶ 17. Ultimately, Plaintiff claims that Defendant breached the terms of the
insurance policy by underpaying her. Id. at ¶¶ 18-20.
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Plaintiff also claims that Defendant defrauded her. To that end, the complaint states that
"Defendant fraudulently delayed the adjustment of the . . . claim to prevent [Plaintiff] from
commencing litigation against the Defendant." Id. at ¶ 23; see also id. at ¶ 26 (accusing
Defendant of "fraudulently and intentionally delay[ing] adjustment of the Plaintiff's claim until
after the passage of the statute of limitations set forth in [the] insurance policy"). Additionally,
the complaint alleges that "Defendant made misrepresentations to the Plaintiff while adjusting her
claim, specifically that the Plaintiff would be fully and fairly reimbursed for aforedescribed
losses." Id. at ¶ 24. According to Plaintiff, she "detrimentally relied" on those alleged
misrepresentations and "was unaware that the Defendant was not acting in good faith until after"
Defendant paid her the unsatisfactory sum. Id. at ¶¶ 25, 27.
III. DISCUSSION
A. 	Standard of Review
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the "legal sufficiency" of the pleader's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). Although a court's review of a
motion to dismiss is generally limited to the facts presented in the pleading, courts may still
consider documents attached to the pleading as an exhibit or incorporated by reference into the
pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). A court may also consider documents
that are "integral" to the pleading, even if they are not physically attached or incorporated by
reference. See id. (quoting Chambers, 282 F.3d at 152-53). Furthermore:
Rule 12(b) gives district courts two options when matters outside
the pleadings are presented in response to a 12(b)(6) motion: the
court may exclude the additional material and decide the motion on
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the complaint alone[,] or it may convert the motion to one for
summary judgment under [Rule] 56 and afford all parties the
opportunity to present supporting material.
Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988). "If, on a
motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded
by the court," the court must convert the motion into one for summary judgment. Fed. R. Civ. P.
12(d). Conversion is not required if the court disregards the extrinsic material. Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006).
In deciding a motion to dismiss under Rule 12(b)(6), courts must accept as true all well-
pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This
presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). To survive a motion to dismiss, a party need only plead
"a short and plain statement of the claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft
to 'sho[w] that the pleader is entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right
to relief above the speculative level," id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). A complaint that "pleads facts that are 'merely
consistent with' a defendant's liability" generally does not meet the pleading standard. See id.
(quoting Twombly, 550 U.S. at 557).
For fraud claims specifically, the Federal Rules of Civil Procedure set forth a "heightened
pleading standard . . . ." Lumbra v. Suja Life, LLC, 674 F. Supp. 3d 7, 20 (N.D.N.Y. 2023) (citing
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Fed. R. Civ. P. 9(b)). "The Second Circuit has explained that, in order to comply with Rule 9(b),
'the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements were made, and (4) explain why the
statements were fraudulent.'" Id. (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175
(2d Cir. 1993)). Allegations of the defendant's state of mind "may be alleged generally." Id.
(quoting Fed. R. Civ. P. 9(b)). "However, because the court 'must not mistake the relaxation of
Rule 9(b)'s specificity requirement regarding condition of mind for a "license to base claims of
fraud on speculation and conclusory allegations," . . . plaintiffs must allege facts that give rise to a
strong inference of fraudulent intent.'" Id. (quoting Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52
(2d Cir. 1995)). This inference "may be established either (a) by alleging facts to show that
[D]efendant[] had both motive and opportunity to commit fraud, or (b) by alleging facts that
constitute strong circumstantial evidence of conscious misbehavior or recklessness." Id. (quoting
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)).
Finally, "federal courts sitting in diversity apply state substantive law and federal
procedural law." Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996). Courts in this
circuit have previously followed state substantive law when deciding diversity cases involving
insurance policy disputes, including with regard to statutes of limitation. See Endemann v.
Liberty Ins. Corp., 390 F. Supp. 3d 362, 370-71 & n.2 (N.D.N.Y. 2019) (collecting cases)
(applying New York substantive law where the insurance policy "was issued to a New York
insured" and the insured property was "located in New York"), partial reconsideration granted,
No. 5:18-cv-00701, 2020 WL 5027241 (N.D.N.Y. Aug. 25, 2020). The Court does the same in
the case at bar, as Plaintiff resides in New York and the insured property is located in New York.
Dkt. No. 2 at ¶¶ 1, 7. Furthermore, neither party appears to dispute the application of New York
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substantive law. See, e.g., Dkt. No. 9-4 at 10 (identifying New York substantive law as the
applicable law in this case); Dkt. No. 11 (failing to dispute that identification).
B. 	Timeliness of Plaintiff's Complaint
Before the Court can reach the complaint's merits, it must address whether Plaintiff's
claims are timely. In its motion to dismiss, Defendant argues that the two-year suit limitation in
the parties' insurance policy necessitates dismissal of the entire complaint. Dkt. No. 9-4 at 11; see
Dkt. No. 9-2 at 46.
Although New York's general statute of limitations for breach-of-contract claims is six
years, "New York [c]ourts have consistently allowed parties, by written agreement, to impose a
shorter period within which to commence an action than that provided by statute[,] so long as the
agreed upon limitation is reasonable." Endemann, 390 F. Supp. 3d at 370-71 (collecting cases);
see also Farage v. Associated Ins. Mgmt. Corp., 43 N.Y.3d 152, 158 (2024) ("We have held that
'there is nothing inherently unreasonable about a two-year period of limitation' . . .") (quoting
Exec. Plaza, LLC v. Peerless Ins. Co., 22 N.Y.3d 511, 518 (2014)). Relatedly, courts in this
circuit have recognized that in cases where a defendant invokes an insurance policy's suit
limitation language, the "[d]efendant has the initial burden of establishing that the limitations
period in the [p]olicy expired prior to the commencement of the action." Endemann, 390 F. Supp.
3d at 371 (citing N. Am. Foreign Trading Corp. v. Mitsui Sumitomo Ins. USA, Inc., 477 F. Supp.
2d 576, 582 (S.D.N.Y. 2006)); see also Civic Conversations, LLC v. Mt. Hawley Ins. Co., 757 F.
Supp. 3d 418, 424-25 (S.D.N.Y. 2024) (quoting Pfeffer v. Harleysville Grp., No. 10-CV-1619,
2011 WL 6132693, *7 (E.D.N.Y. Sept. 30, 2011)). "Once the defendant has met its burden, the
plaintiff has the burden 'to aver evidentiary facts establishing that the case at hand falls within an
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exception to the limitations period,' such as waiver or estoppel." Endemann, 390 F. Supp. 3d at
371 (quoting N. Am. Foreign Trading Corp., 477 F. Supp. 2d at 582).
To rebut the limitations defense, Plaintiff must show "either that the insurer 'engage[d] in
a course of conduct which lull[ed] [Plaintiff] into inactivity in the belief that [her] claim [would]
be paid' or that [Plaintiff] was 'induced by fraud or misrepresentation to refrain from commencing
a timely action.'" Civic Conversations, LLC, 757 F. Supp. 3d at 425 (quoting Plon Realty Corp. v.
Travelers Ins. Co., 533 F. Supp. 2d 391, 395 (S.D.N.Y. 2008)); see also Endemann, 390 F. Supp.
3d at 374. Generally, "[t]he conduct that purportedly [misled] or lulled Plaintiff into failing to
bring a timely action must have occurred within the limitations period." Endemann, 390 F. Supp.
3d at 374 (quoting N. Am. Foreign Trading Corp., 477 F. Supp. 2d at 582). Where a plaintiff
points to a defendant's course of conduct that began during the limitations period and continued
after the period expired, equitable estoppel might still be warranted if the plaintiff shows that it
reasonably relied on the defendant's misrepresentations. See Endemann v. Liberty Ins. Corp., No.
5:18-cv-00701, 2020 WL 5027241, *3 (N.D.N.Y. Aug. 25, 2020) (citing Zumpano v. Quinn, 6
N.Y.3d 666, 674 (2006)). Importantly, the New York Court of Appeals has held that conclusory
claims of an insurer's misconduct, without specific supporting factual allegations, are insufficient
to prevent the insurer from asserting a time limitation defense under an insurance policy. See
Farage, 43 N.Y.3d at 160; see also Dkt. No. 9-4 at 14; Dkt. No. 12 at 5.
Here, the parties' insurance policy—which is incorporated by reference into the
complaint—contains a two-year limitations provision. Dkt. No. 9-2 at 46 ("Suit Against Us. No
action shall be brought against us [Defendant] unless there has been compliance with the policy
provisions and the action is started within two years after the inception of the loss or damage").
Neither party appears to question the reasonableness of the provision. Likewise, the parties do
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not dispute when the limitations period began running. Indeed, in its motion, Defendant states
that "[b]ecause there is no dispute that the burglary occurred September 3 and 4, 2022, and
Plaintiff filed her lawsuit March 14, 20251 – more than 2.5 years later, the Complaint should be
dismissed in its entirety." Dkt. No. 9-4 at 12. In her response, Plaintiff does not contest
Defendant's suggestion that the limitations period began running when the burglaries occurred.
Rather, her position is that the limitations period expired before she discovered any reason to sue,
and claims that Defendant's bad-faith conduct caused her to miss the deadline. Dkt. No. 11 at 5.
Accordingly, the main issue of timeliness is whether Plaintiff properly invoked an exception to
the limitations period.
Alongside her opposition to Defendant's motion, Plaintiff submitted an affidavit with
additional factual allegations absent from the complaint. However, because this Court has
discretion under Rule 12(d) on whether to consider extrinsic material in deciding a 12(b)(6)
motion to dismiss, and because formal discovery has not yet occurred, the Court declines to
consider factual allegations outside the complaint at this stage. See Islip U-Slip LLC v. Gander
Mountain Co., 2 F. Supp. 3d 296, 305 (N.D.N.Y. 2014) (citations omitted). Critically, "[f]actual
allegations contained in legal briefs or memoranda are . . . treated as matters outside the pleading
for purposes of Rule 12(b)." Fonte, 848 F.2d at 25 (citation omitted). Thus, consideration of the
affidavit or factual allegations in Plaintiff's opposition brief would necessitate a conversion of the
motion under Rule 12(d), which the Court determines is premature at this juncture. Accordingly,
although the Court has read Plaintiff's opposition papers, only the portions without new factual
assertions are considered in the Court's conclusion.
1 Plaintiff's state court complaint is dated March 13, 2025. Dkt. No. 2 at 4.
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In her opposition, Plaintiff argues that equitable estoppel prevents Defendant from
invoking the contractual suit limitation. Dkt. No. 11 at 7. As previously mentioned, Plaintiff can
"establish estoppel[] '[by offering] evidence that [she] was misled or lulled by . . . [D]efendant
into failing to bring [her] claim in a timely manner[,]'" with Defendant's bad-faith conduct
"occur[ing] within the limitations period." Endemann, 390 F. Supp. 3d at 374 (quoting N. Am.
Foreign Trading Corp., 477 F. Supp. 2d at 582). However, the complaint's factual allegations of
Defendant's conduct are scarce and fail to specify whether the conduct occurred inside or outside
the limitations period (aside from Defendant's eventual payment to Plaintiff in January 2025). For
example, Plaintiff alleges in conclusory fashion that "Defendant made misrepresentations to [her]
while adjusting her claim, specifically that the Plaintiff would be fully and fairly reimbursed for
[her] losses[,]" Dkt. No. 2 at ¶ 24, and "Plaintiff detrimentally relied upon said misrepresentations
made to her by the Defendant, by and through its employees and agents," id. at ¶ 25. She also
claims that "Defendant fraudulently and intentionally delayed adjustment of the Plaintiff's claim
until after the passage of the statute of limitations set forth in [the] insurance policy[,]" but does
not plead any concrete facts demonstrating such. Id. at ¶ 26.
Ultimately, Plaintiff's complaint is devoid any specific facts to show that Defendant
fraudulently or intentionally induced or lulled her into missing the suit deadline. Although
Defendant did not pay Plaintiff until after the limitations period ended, Plaintiff's complaint does
not contain any articulable factual allegations suggesting Defendant intentionally wasted time or
deceived her during its investigation. By extension, her complaint does not supply nearly enough
facts for the Court to infer that any of Defendant's actions—whatever they may be—were part of
an unlawful course of conduct that would warrant equitable estoppel.
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Accordingly, Plaintiff's arguments and the factual allegations in her complaint fall far
short of the required showing to invoke equitable estoppel. As pled, her entire complaint is time-
barred by the limitations period set out in the insurance policy. Because the action is untimely,
the Court declines to opine further on the merits of Plaintiff's claim or the sufficiency of her
complaint. However, because Plaintiff has not yet amended her complaint, and because the Court
did not consider the factual allegations within Plaintiff's extrinsic affidavit or opposition brief, the
Court will permit Plaintiff to amend her complaint with additional facts to support her equitable
estoppel argument.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the reasons set forth above, the Court hereby
ORDERS that Defendant's motion to dismiss (Dkt. No. 9) is GRANTED; and the Court
further
ORDERS that Plaintiff may file an amended complaint within THIRTY (30) DAYS of
the date of this Memorandum-Decision and Order; and the Court further
ORDERS that if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS
of the date of this Memorandum-Decision and Order, the Clerk of the Court shall enter judgment
in Defendant's favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 3, 2025
Albany, New York
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