Creative Marketing Products of Rochester, Inc. v. United States Fidelity & Guaranty Co.

69 A.D.2d 1014, 416 N.Y.S.2d 153, 1979 N.Y. App. Div. LEXIS 11798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1979
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously modified, and, as modified, affirmed, with costs, to defendant, in accordance with the following memorandum: Special Term allowed plaintiff Creative Marketing Products of Rochester, Inc., to amend its complaints on these two actions on fire insurance policies issued by defendants, United States Fidelity and Guaranty Company and Aetna Insurance Company, to include causes of action for reformation of the policies. Plaintiff asserted that the policies upon which it seeks to recover were mistakenly issued to "Joseph Comella and Joseph Trovato d/b/a Creative Marketing of Rochester, New York” rather than to "Creative Marketing Products of Rochester, Inc.” and that the policies should be reformed to reflect the agreement of the parties. We find that defendants will suffer no substantial prejudice as a result of the amendment and we conclude that Special Term did not abuse its discretion in granting plaintiff’s motions. In view of plaintiff’s failure to provide an excuse for its delay in making these motions until shortly before trial, however, we modify Special Term’s orders to provide that the permission granted to plaintiff to amend its complaints be conditioned upon plaintiff’s payment of the sum of $100 to the defendant in each action. We add that defendants should be given an opportunity for further disclosure, should they find it necessary. (Appeal from order of Monroe Supreme Court—amend complaint.) Present— Simons, J. P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.