From Casetext: Smarter Legal Research

West Branch Realty Corp. v. Exchange Ins. Co.

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1999
260 A.D.2d 473 (N.Y. App. Div. 1999)

Opinion

April 12, 1999

Appeal from the Supreme Court, Putnam County (Sklaver, J.H.O.).


Ordered that the judgment is affirmed, without costs or disbursements.

The Supreme Court properly denied the plaintiff's motion for leave to amend its complaint during trial to assert a cause of action based upon the terms of an insurance binder. While leave to amend should be freely given (see, CPLR 3025 [b]), a proposed amendment which is devoid of merit should not be permitted (see, Hall Signs v. Aries Striping, 236 A.D.2d 513; Nasuf Constr. Corp. v. State of New York, 185 A.D.2d 304, 305; Brown v. Samalin Bock, 155 A.D.2d 407). We agree with the trial court that the plaintiff was bound by the terms of the written insurance policy issued seven months before the fire (see, Metzger v. Aetna Ins. Co., 227 N.Y. 411, 416; Rogers v. Urbanke, 194 A.D.2d 1024, 1025; Wausau Underwriters Ins. Co. v. St. Barnabas Hosp., 145 A.D.2d 314).

The trial court properly charged the jury on the burden of proof regarding the affirmative defense of arson (see, Hutt v. Lumbermens Mut. Cas. Co., 95 A.D.2d 255; see also, Malek v. Federal Ins. Co., 994 F.2d 49, 55; Long Is. Ski Ctr. v. Hartford Fire Ins. Co., 121 A.D.2d 368; Rossi v. Hartford Fire Ins. Co., 103 A.D.2d 771).

The parties' remaining contentions are without merit.

O'Brien, J. P., Joy, Krausman and Goldstein, JJ., concur.


Summaries of

West Branch Realty Corp. v. Exchange Ins. Co.

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1999
260 A.D.2d 473 (N.Y. App. Div. 1999)
Case details for

West Branch Realty Corp. v. Exchange Ins. Co.

Case Details

Full title:WEST BRANCH REALTY CORP., Appellant-Respondent, v. EXCHANGE INSURANCE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 12, 1999

Citations

260 A.D.2d 473 (N.Y. App. Div. 1999)
688 N.Y.S.2d 228

Citing Cases

Nicholas J. Masterpol, Inc. v. Travelers

The court also properly denied that part of plaintiff's motion seeking, in the alternative, leave to amend…

Hennessey v. 91 American Grocery

Although leave to amend a complaint should be freely granted (See, CPLR 3025 [a]), the movant must make some…