The opinion
Joy, J.,
concurs in part and dissents in part and votes to modify the order appealed from on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the first cause of action, and substituting therefor a provision denying that branch of the motion, and as so modified, to affirm the order appealed from, with the following memorandum, in which Miller, J., concurs. I concur in the analysis and conclusion of my colleagues that the second and third causes of action asserted in the complaint fail to state a cause of action. However, I would reinstate the first cause of action to recover damages sustained by the plaintiffs to their dwelling and personal property.
The defendant’s claim adjuster visited the subject premises three times between June 1985, when the flooding damage occurred, and September 1985. After inspecting the damage on the initial visit, the adjuster, who was employed by the defendant, allegedly told the plaintiffs "I could give you a check right now but you will be losing a lot of money if I do that”. He asked them to compile an itemized list of their damages and said he would return and settle their claim on that basis. The plaintiffs followed those instructions and submitted a list to the adjuster when he returned to their house in July. After the plaintiffs mailed a readjusted list to the defendant’s adjuster in August 1985 he returned to the premises on September 1, 1985, allegedly informing them that he needed time to "evaluate the items so that he could work up a total amount incorporating the personal property and the structural damage so [that] he could settle the claim”. While, as the majority points out, there appears to have been no further contact for three years, during which time the two-year period of limitation set forth in the insurance contract *260 expired, the record shows that the plaintiffs made numerous attempts to contact the adjuster in order to finalize the amount of the settlement check that the adjuster had stated they would receive.
I therefore conclude that a triable issue of fact exists as to whether the defendant should be estopped from invoking the period of limitation contained in its policy. The question of whether the conduct of the defendant’s adjuster misled the plaintiffs into believing that nothing further was required of them, in that their claim would be settled, and thereby lulled the plaintiffs into inaction, permitting the period of limitation to expire before the defendant tendered an unacceptable settlement check, is properly one for the jury (see, LaBerge Eng’g & Consulting Group v Village of Keeseville, 169 AD2d 1021 ; Burke v Nationwide Ins. Co., 108 AD2d 1098 ; Presentation Tech. Aids v Employers’ Ins., 105 AD2d 628 ; Graziane v National Sur. Corp., 102 AD2d 950 ; Mass v Great Am. Ins. Co., 28 AD2d 897 ).
Under these circumstances, I find that summary judgment in favor of the defendant with respect to plaintiffs’ first cause of action is inappropriate.