James A. Brannigan, plaintiff-respondent,
Christie Overhead Door, et al., defendants, Robert J. Brannigan, et al., defendants third-party plaintiffs- respondents; Nationwide Mutual Fire Insurance Company, et al., third-party defendants-appellants. Index No. 26780/11
Makris Plousadis & Seiden, LLP, Woodbury, NY (Sarah M.
Ziolkowski and Lorin A. Donnelly of counsel), for third-party
F. Liotti, Garden City, NY, for plaintiff-respondent.
Leonard Feigenbaum, Plainview, NY, for defendants third-party
REINALDO E. RIVERA, J.P. RUTH C. BALKIN CHERYL E. CHAMBERS
JEFFREY A. COHEN, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
third-party defendants appeal, as limited by their brief,
from so much of an order of the Supreme Court, Kings County
(Toussaint, J.), dated May 21, 2014, as denied that branch of
their motion which was pursuant to CPLR 3211(a) to dismiss
the third-party complaint and granted the plaintiff's
motion for leave to serve and file an amended complaint in
the main action.
that the order is modified, on the law, by deleting the
provision thereof denying that branch of the third-party
defendants' motion which was pursuant to CPLR 3211(a) to
dismiss the third-party complaint insofar as asserted against
the third-party defendant Amato Coverage Group, Inc., and
substituting therefor a provision granting that branch of the
third-party defendants' motion; as so modified, the order
is affirmed insofar as appealed from, without costs or
main action, the plaintiff moved for leave to serve an
amended complaint. In essence, the proposed amendment to the
complaint related to the issue of where the plaintiff resided
at the time of the incident, which is an important issue in
the third-party action. The Supreme Court granted the
plaintiff's motion. On appeal, the third-party defendants
contend that the court erred inasmuch as the proposed
amendment was patently devoid of merit. They also contend
that the papers submitted in support of the motion were
insufficient because the plaintiff failed to provide a
reasonable excuse for his delay in moving for leave to amend
the complaint and in failing to submit an affidavit of merit.
Supreme Court neither erred on the law nor improvidently
exercised its discretion in granting the plaintiff's
motion. Under CPLR 3025(b), leave to amend a pleading
"shall be freely given" (CPLR 3025[b]). A party
seeking leave to amend a pleading is not required to make a
showing of merit in the proposed amendment (see Lucido v
Mancuso, 49 A.D.3d 220, 229). Courts should grant leave
to amend "[i]n the absence of prejudice or surprise
resulting directly from the delay in seeking leave... unless
the proposed amendment is palpably insufficient or patently
devoid of merit" (id. at 222; see Katz v
Castlepoint Ins. Co., 121 A.D.3d 948, 950). Here, the
plaintiff's proposed amendment contradicted an allegation
in the original complaint, but that inconsistency simply
raises an issue of credibility that may be addressed later in
the action; it does not, contrary to the third-party
defendants' contention, render the proposed amendment
patently without merit.
Supreme Court properly denied that branch of the third-party
defendants' motion which was pursuant to CPLR 3211(a)(1)
and (7) to dismiss the third-party complaint insofar as
asserted against the third-party defendant Nationwide Mutual
Fire Insurance Company (hereinafter Nationwide). The
third-party defendants contended that Nationwide was not
obligated to defend or indemnify the third-party plaintiffs
because of an exclusion in the personal liability coverage of
the policy relating to injuries to relatives residing in the
premises. Contrary to the third-party defendants'
contentions, the evidence they submitted in support of the
motion either was not documentary evidence within the meaning
of CPLR 3211(a)(1) or did not conclusively establish that a
material fact as claimed by the third-party plaintiffs is not
a fact at all and that no significant dispute exists
regarding it (see Guggenheimer v Ginzburg, 43 N.Y.2d
268, 275; Anzora v 81 Saxon Ave. Corp., 146 A.D.3d
848, 849; Sasidharan v Piverger, 145 A.D.3d 814,
815-816; Laxer v Edelman, 75 A.D.3d 584, 586).
Supreme Court erred, however, in denying dismissal of the
third-party complaint insofar as asserted against the
third-party defendant Amato Coverage Group, Inc. (hereinafter
Amato). " To set forth a case for negligence or breach
of contract against an insurance broker, a plaintiff must
establish that a specific request was made to the broker for
the coverage that was not provided in the policy'"
(Joseph v Interboro Ins. Co., 144 A.D.3d 1105, 1108,
quoting American Bldg. Supply Corp. v Petrocelli Group,
Inc., 19 N.Y.3d 730, 735). Here, the third-party
complaint failed to allege that the third-party plaintiffs
requested that Amato procure a specific type of policy,
namely, one that would have insured them with regard to an
injury suffered by a relative residing at the property.
third-party defendants' remaining contention ...