| Peerless Ins. Co. v Micro Fibertek, Inc. |
| 2009 NY Slip Op 08795 [67 AD3d 978] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Peerless Insurance Company, Appellant, v Micro Fibertek,Inc., et al., Defendants, and Crown Royal Ventures, LLC,Respondent. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend orindemnify the defendant Micro Fibertek, Inc., in an underlying personal injury action entitledWallerstein v Crown Royal Ventures, LLC, pending in the Supreme Court, SuffolkCounty, under index No. 36142/06, the plaintiff appeals from an order of the Supreme Court,Suffolk County (Weber, J.), dated May 29, 2008, which, inter alia, granted the separate motionsof the defendant Crown Royal Ventures, LLC, for leave to amend its answer and for summaryjudgment declaring that the plaintiff is obligated to defend and indemnify the defendant MicroFibertek, Inc., in the underlying action.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Suffolk County, for the entry of a judgment declaring that the plaintiff is obligated todefend and indemnify Micro Fibertek, Inc., in the underlying action.
Initially, we reject the plaintiff's contention that the Supreme Court erred in considering themotion of the defendant Crown Royal Ventures, LLC (hereinafter Crown Royal), for summaryjudgment by virtue of a prior order granting the plaintiff's motion for a default judgment againstthe defendant Micro Fibertek, Inc. (hereinafter Micro Fibertek). The prior order did notdetermine the merits of the issues raised, and did not constitute the law of the case (see Allstate Ins. Co. v Liberty Lines Tr.,Inc., 50 AD3d 712, 713 [2008]; Meekins v Town of Riverhead, 20 AD3d 399, 400 [2005]; seealso Kaufman v Eli Lilly & Co., 65 NY2d 449, 457 [1985]).
The Supreme Court properly awarded summary judgment to Crown Royal. In response to Crown Royal's prima facie showingof entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]), as to whether a policy exclusion precluded coverage, or asto whether notice of the claim was timely given.
Furthermore, Crown Royal's motion for summary judgment was not premature, since theplaintiff failed to offer an evidentiary basis to suggest that discovery might lead to relevantevidence (see Lauriello v Gallotta,59 AD3d 497, 499 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]; [*2]Kimyagarov v Nixon Taxi Corp., 45 AD3d 736, 737[2007]).
The Supreme Court also properly granted Crown Royal's motion for leave to amend itsanswer. Leave to amend pleadings should be freely given provided that the amendment is notpalpably insufficient, does not prejudice or surprise the opposing party, and is not patentlydevoid of merit (see Gitlin vChirinkin, 60 AD3d 901, 902 [2009]). A determination whether to grant such leave iswithin the Supreme Court's broad discretion, and the exercise of that discretion will not belightly disturbed (id.). Here, Crown Royal's proposed amendment was neither palpablyinsufficient nor patently devoid of merit, and the plaintiff did not demonstrate that it wouldsuffer prejudice or surprise if leave to amend were granted. Further, in light of Crown Royal'sallegation that the plaintiff delayed in complying with its discovery demand by forwarding it acopy of the relevant insurance policy almost a year after it had initially requested it, the SupremeCourt providently exercised its discretion in rejecting the contention that Crown Royal's motionfor leave to amend the answer was untimely (see e.g. Gitlin v Chirinkin, 60 AD3d at902; cf Peteroy v St. Vincent's Med. Ctr. of Richmond, 278 AD2d 295 [2000]).
The plaintiff's remaining contention is without merit.
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Suffolk County, for the entry of a judgment declaring that the plaintiff is obligated todefend and indemnify Micro Fibertek in the underlying action (see Lanza v Wagner, 11NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US901 [1962]). Dillon, J.P., Dickerson, Belen and Roman, JJ., concur.
[As ameneded by an unreported motion dated Mar. 23, 2010, see 2010 NY Slip Op 66284(U).]