Curiale v. Stephen Weicholz & Co.

192 A.D.2d 339, 596 N.Y.S.2d 19

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Stuart C. Cohen, J.), entered on or about November 23, 1991, granting plaintiff’s motion to amend the complaint and to add party-defendants, unanimously affirmed, with costs.

Plaintiff Superintendent of Insurance demonstrated a prima facie basis for the additional claims, and the individual defendants have not shown that prejudice will result from amendment of the complaint (see, Wyso v City of New York, 91 AD2d 661). While the parties dispute the amount of unearned insurance premiums owed to the Superintendent and whether certain reinsurance premium payments were legitimately made, resolution of the merits of these claims is not appropriate under a CPLR 3025 (b) motion to amend a pleading (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:ll). Defendants offer only conclusory statements as to alleged irretrievability of documents and unavailability of witnesses, and as personal guarantors for the obligations of the corporate defendants, the individual defendants cannot claim surprise in the inclusion of a clause on the guaranties in this liquidation proceeding. Prejudice will not be found merely because those individuals will be exposed to greater liability under the pleading amendment sought (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23). Concur — Murphy, P. J., Milonas, Rosenberger and Wallach, JJ.