| American Cleaners, Inc. v American Intl. Specialty Lines Ins.Co. |
| 2009 NY Slip Op 09172 [68 AD3d 792] |
| December 8, 2009 |
| Appellate Division, Second Department |
| American Cleaners, Inc., Appellant, v AmericanInternational Specialty Lines Insurance Company et al.,Respondents. |
—[*1] Beth Zaro Green, Brooklyn, N.Y. (Erika C. Aljens and Michael Fleming of counsel), forrespondent American International Specialty Lines Insurance Company. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Mathew P. Ross andDebra A. Adler of counsel), for respondents Konover & Associates, Inc., Konover ManagementCorporation, and Koncal Associates Limited Partnership.
In an action, inter alia, in effect, for a judgment declaring that the plaintiff is covered by aninsurance policy issued by the defendant American International Specialty Lines InsuranceCompany naming the defendant Konover & Associates, Inc., as the insured, the plaintiff appealsfrom (1) an order of the Supreme Court, Orange County (Owen, J.), dated September 16, 2008,which granted the motion of the defendant American International Specialty Lines InsuranceCompany, and the separate motion of the defendants Konover & Associates, Inc., KonoverManagement Corporation, and Koncal Associates Limited Partnership for summary judgmentand denied the plaintiff's cross motion for leave to amend the complaint to interpose additionalcauses of action, and (2) a judgment of the same court dated November 10, 2008, which, uponthe order, among other things, declared, in effect, that the plaintiff is not covered by the subjectinsurance policy.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d [*2]241 [1976]). The issues raised on the appeal from theorder are brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The Supreme Court properly granted the motion of the defendant American InternationalSpecialty Lines Insurance Company (hereinafter American International) for summary judgment."The four corners of an insurance agreement govern who is covered and the extent of coverage"(Sixty Sutton Corp. v Illinois Union Ins.Co., 34 AD3d 386, 388 [2006]; see Stainless, Inc. v Employers Fire Ins. Co., 69AD2d 27, 33 [1979], affd 49 NY2d 924 [1980]). Moreover, where a third party seeks thebenefit of coverage, the terms of the policy must clearly evince such intent (see Stainless,Inc. v Employers Fire Ins. Co., 69 AD2d at 33). Here, by submitting the subject policy ofinsurance, which lists the defendant Konover & Associates, Inc., as the only named insured,American International demonstrated, prima facie, that the plaintiff was not entitled to adeclaration of coverage. In opposition, the plaintiff failed to raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557 [1980]).
Likewise, the court properly granted the motion of the defendants Konover & Associates,Inc., Konover Management Corporation, and Koncal Associates Limited Partnership (hereinafterthe Konover defendants) for summary judgment. The Konover defendants demonstrated theirprima facie entitlement to judgment as a matter of law by submitting a lease executed by KoncalAssociates Limited Partnership, as landlord, and the plaintiff, as tenant, which did not obligatethem to name the plaintiff as an additional insured. In opposition to this showing, the plaintifffailed to raise a triable issue of fact.
Furthermore, the court providently exercised its discretion in denying the plaintiff's crossmotion, made on the eve of trial, for leave to amend the complaint to add causes of actionsounding in breach of contract, common-law indemnification, and indemnification under theNavigation Law. "Generally, '[i]n the absence of prejudice or surprise to the opposing party,leave to amend a pleading should be freely granted unless the proposed amendment is palpablyinsufficient or patently devoid of merit' " (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828[2008], quoting G.K. Alan Assoc., Inc.v Lazzari, 44 AD3d 95, 99 [2007], affd 10 NY3d 941 [2008]; see CPLR3025 [b]; Sampson v Contillo, 55AD3d 591 [2008]; Lucido vMancuso, 49 AD3d 220 [2008]; Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d874 [2007]). "However, where the application for leave to amend is made long after theaction has been certified for trial, 'judicial discretion in allowing such amendments should bediscrete, circumspect, prudent, and cautious' " (Morris v Queens Long Is. Med. Group,P.C., 49 AD3d at 828, quoting Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552[1997]). "Moreover, when . . . leave is sought on the eve of trial, judicial discretionshould be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at828; see Comsewogue Union FreeSchool Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525 [2005];Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846 [2003]). "Inexercising its discretion, the court should consider how long the party seeking the amendmentwas aware of the facts upon which the motion was predicated, whether a reasonable excuse forthe delay was offered, and whether prejudice resulted therefrom" (Cohen v Ho, 38 AD3d 705, 706[2007]). The Supreme Court properly weighed all of these considerations, including theplaintiff's failure to proffer a reasonable excuse for the delay, in denying the plaintiff's crossmotion. Skelos, J.P., Eng, Austin and Roman, JJ., concur.