| Vermont Mut. Ins. Co. v Mowery Constr., Inc. |
| 2012 NY Slip Op 04814 [96 AD3d 1218] |
| June 14, 2012 |
| Appellate Division, Third Department |
| Vermont Mutual Insurance Company, Appellant, v MoweryConstruction, Inc., Defendant, and James Ciuffo, Respondent. |
—[*1] Conway & Kirby, L.L.P., Latham (Andrew W. Kirby of counsel), for respondent.
Mercure, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered March 21,2011 in Warren County, which denied plaintiff's motion to amend the complaint.
In March 2005, defendant James Ciuffo was injured while working at a construction siteoverseen by defendant Mowery Construction, Inc., a general contractor. Mowery failed to informplaintiff, its liability insurer, of the incident until Ciuffo commenced a personal injury actionagainst it over two years later. In January 2008, plaintiff sent Mowery a reservation of rightsletter in which it agreed to provide a defense in the personal injury action subject to its right todisclaim coverage if it determined that Mowery had not provided timely notice of the claim orthat another policy exclusion provided a basis for disclaimer.
Plaintiff commenced this action in February 2008, seeking a declaration that it was notobliged to indemnify or defend Mowery due to the lack of timely notice. Following joinder ofissue and discovery, plaintiff moved in January 2010 for leave to serve an amended complaintasserting a new basis for disclaiming coverage, namely, that Ciuffo was an employee of Moweryrather than an independent contractor as Mowery claimed and, therefore, a policy provision [*2]excluding coverage for injuries to employees was applicable.Supreme Court denied the motion, concluding that the amendment should have been soughtsooner and that Mowery would be prejudiced by it. Plaintiff appeals and we now affirm.
Whether leave to amend a complaint should be granted rests within the sound discretion ofthe trial court, although leave should be freely granted if the amendment is not plainly lacking inmerit and does not unduly prejudice or surprise the nonmoving party (see Davis v Wyeth Pharms., Inc., 86AD3d 907, 908 [2011]; Dever vDeVito, 84 AD3d 1539, 1541 [2011], lv dismissed 18 NY3d 864 [2012]).Supreme Court correctly determined that the amendment had arguable merit, inasmuch as there isevidence suggesting that Mowery exercised substantial control "over the results produced or themeans used to achieve the results" of the work performed (Bynog v Cipriani Group, 1 NY3d 193, 198 [2003]; see Clemens v Brown, 69 AD3d1197, 1199 [2010]). We further agree with Supreme Court, however, that the proposedamendment would unduly prejudice and surprise defendants.
Plaintiff did not seek leave to amend until almost two years after the action was commencedand, while that delay alone did not bar the amendment, plaintiff failed to show a satisfactoryexcuse for the delay (see McCaskey, Davies & Assoc. v New York City Health & Hosps.Corp., 59 NY2d 755, 757 [1983]; Duquette v Oliva, 75 AD3d 727, 728 [2010]). The recorddemonstrates that plaintiff had evidence suggesting that Ciuffo was Mowery's employee before itsent the reservation of rights letter and commenced the present action, but nevertheless failed toraise the issue in its complaint or promptly seek leave to amend. In the interim, Mowery based itsdefense in both this action and the underlying personal injury action upon Ciuffo's status as anindependent contractor, and plaintiff's failure to timely raise the issue was prejudicial toMowery.[FN*]Under these circumstances, Supreme Court properly exercised its discretion in denying plaintiff'smotion (see Bastidas v Epic Realty,LLC, 58 AD3d 776, 777-778 [2009]; Hassan v Schweizer, 277 AD2d 797,799-800 [2000]; cf. Caceras v Zorbas, 74 NY2d 884, 885 [1989]).
Peters, P.J., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Mowery was held liable inCiuffo's action prior to Supreme Court's decision on the present motion, and Ciuffo has appealedfrom the ensuing award of damages.