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Century Indemnity Co. v. Brooklyn Union Gas Co.

Supreme Court, New York County

April 9, 2013

CENTURY INDEMNITY COMPANY, Plaintiff,
v.
BROOKLYN UNION GAS COMPANY, Defendant Index No. 603405/01

Unpublished Opinion

HON, PAUL WOOTEN Justice

The following papers were read on this motion by plaintiff to amend the complaint.

PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ...
Answering Affidavits — Exhibits (Memo) ___
Replying Affidavits (Reply Memo) ___
Cross-Motion: □ Yes ■ No

Defendant Brooklyn Union Gas Company (Brooklyn Union) moves, by Order to Show Cause (OSC), for leave to amend its sixth amended complaint. In this action, Brooklyn Union seeks a declaration that Century Indemnity Company (Century) is obligated to pay or reimburse Brooklyn Union for its defense costs and pay coverage to Brooklyn Union for liabilities it incurs in connection with its manufactured gas plant sites (MGP Sites).

In its proposed seventh amended complaint for declaratory judgment and damages, Brooklyn Union seeks to make essentially the following changes:

1.eliminating all defendants other than Century Indemnity Company;
2.adding two MGP Sites, (the Gowanus Canal and Newtown Creek) to the ten already listed in its sixth amended complaint;
3. redefining the period liability for alleged environmental property damage that occurred as solely "the periods of insurance at issue in this action, " and deleting the information and belief allegation and the reference to the period which "began when MGP operations commenced ..., or shortly thereafter" (see e.g. redlined copy of proposed Seventh Amended Complaint § 15, annexed to Affirmation of Jay T. Smith, exhibit B); and
4. updating the regulatory involvement at the Citizens Works MGP Site.

DISCUSSION

Leave to amend pleadings under CPLR 3025 (b) should be freely given, and denied only if there is "prejudice or surprise resulting directly from the delay, " or if the proposed amendment "is palpably improper or insufficient as a matter of law." A party opposing leave to amend "must overcome a heavy presumption of validity in favor of [permitting amendment]." Prejudice to warrant denial of leave to amend requires "'some indication that the defendant has been hindered in the preparation of [their] case or has been prevented from taking some measure in support ...


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