Singer v. Beneficial National Life Insurance

Appellate Division of the Supreme Court of New York

Singer v. Beneficial National Life Insurance

51 A.D.2d 957, 381 N.Y.S.2d 479, 1976 N.Y. App. Div. LEXIS 11677

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 29, 1976

StatusPublished

Cited by1 cases

This text of 51 A.D.2d 957 (Singer v. Beneficial National Life Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Singer v. Beneficial National Life Insurance, 51 A.D.2d 957, 381 N.Y.S.2d 479, 1976 N.Y. App. Div. LEXIS 11677 (N.Y. Ct. App. 1976).

Pincite

Opinion

Order, Supreme Court, New York County, entered [958]*958June 20, 1975, unanimously modified, on the law and the facts and in the exercise of discretion, without costs and without disbursements, to permit the service of a second amended complaint in the form proposed attached to the plaintiffs motion, and the defendant is permitted to continue the suspended examinations before trial of the plaintiff and his wife upon the basis of said second amended complaint, and otherwise affirmed. Plaintiff obtained a major medical insurance policy from the defendant. Subsequently, a son was born to the plaintiff and became ill. When the plaintiff requested reimbursement for the medical expenses for the son, the defendant denied liability on the ground that the plaintiff had failed to comply with the procedure to add a beneficiary under the policy. Plaintiff brought this action in 1970, and the theory of recovery in the amended complaint was for contract reformation. Three years later, the plaintiff moved to serve a second amended complaint on the theory of negligent misrepresentation. While there are some minor factual changes, it is the theory of recovery that is different not the substance. The court at Special Term imposed costs payable to defendant’s attorney because of the laches, but permitted the amendment, although there are some questions as to whether the additional minor factual changes were permitted. No prejudice being shown, the second amended complaint as submitted should be permitted to be served. (See Symphonic Electronic Corp. v Audio Devices, 24 AD2d 746; and Minasy v Foster Wheeler Corp., 15 AD2d 759.) However, with the new theory of the complaint, the defendant should be permitted to continue the examination of the plaintiff and his wife so as to be fully prepared in the premises. The appeal from the order of November 27, 1974 is unanimously dismissed, without costs and without disbursements, as superseded. Concur—Markewich, J. P., Kupferman, Lupiano, Capozzoli and Nunez, JJ.

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Order, Supreme Court, New York County, entered [958]*958June 20, 1975, unanimously modified, on the law and the facts and in the exercise of discretion, without costs and without disbursements, to permit the service of a second amended complaint in the form proposed attached to the plaintiffs motion, and the defendant is permitted to continue the suspended examinations before trial of the plaintiff and his wife upon the basis of said second amended complaint, and otherwise affirmed. Plaintiff obtained a major medical insurance policy from the defendant. Subsequently, a son was born to the plaintiff and became ill. When the plaintiff requested reimbursement for the medical expenses for the son, the defendant denied liability on the ground that the plaintiff had failed to comply with the procedure to add a beneficiary under the policy. Plaintiff brought this action in 1970, and the theory of recovery in the amended complaint was for contract reformation. Three years later, the plaintiff moved to serve a second amended complaint on the theory of negligent misrepresentation. While there are some minor factual changes, it is the theory of recovery that is different not the substance. The court at Special Term imposed costs payable to defendant’s attorney because of the laches, but permitted the amendment, although there are some questions as to whether the additional minor factual changes were permitted. No prejudice being shown, the second amended complaint as submitted should be permitted to be served. (See Symphonic Electronic Corp. v Audio Devices, 24 AD2d 746; and Minasy v Foster Wheeler Corp., 15 AD2d 759.) However, with the new theory of the complaint, the defendant should be permitted to continue the examination of the plaintiff and his wife so as to be fully prepared in the premises. The appeal from the order of November 27, 1974 is unanimously dismissed, without costs and without disbursements, as superseded. Concur—Markewich, J. P., Kupferman, Lupiano, Capozzoli and Nunez, JJ.

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Bluebook (online)

51 A.D.2d 957, 381 N.Y.S.2d 479, 1976 N.Y. App. Div. LEXIS 11677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/singer-v-beneficial-national-life-insurance-nyappdiv-1976.

Opinion

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