Donaldson, Lufkin & Jenrette, Inc. v. Vigilant Insurance

209 A.D.2d 185, 618 N.Y.S.2d 278, 1994 N.Y. App. Div. LEXIS 10883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Edward J. Greenfield, J.), entered March 30, 1993, granting defendants’ motion and cross-motions for summary judgment dismissing plaintiffs’ complaints and which denied plaintiffs’ motion for leave to serve amended complaints setting forth a cause of action for reformation, and the judgment of the same court and Justice entered thereon on June 11, 1993, unanimously affirmed, with costs.

We agree with the IAS Court that plaintiffs have failed to come forth with sufficient proof to warrant a trial on their claim for reformation of the fidelity bonds sued on herein. The party resisting pretrial dismissal of a reformation claim is required to tender a " 'high level’ ” of proof in evidentiary form (Chimart Assocs. v Paul, 66 NY2d 570, 574). Here, ACLI Metals (London) Limited (AML) was admittedly not a named subsidiary to be covered under these bonds and plaintiffs’ self-serving averments that AML was intended to be covered is not the high level of proof necessary to allow a reformation claim to go to trial. Indeed, the submissions before the IAS Court strongly support the conclusion that AML was intentionally omitted. The affirmance of the order and judgment herein is based solely on this ground. Concur—Murphy, P. J., Rosenberger, Wallach, Kupferman and Asch, JJ.