NICHOLAS MASTERPOL INC v. Sinclair & Andrews Insurance and Sinclair & Andrews, Inc., Defendants-Appellants-Respondents (2000)

 Supreme Court properly denied those parts of plaintiff's motion seeking summary judgment and dismissal of the defense of defendant The Travelers Insurance Companies (Travelers) based upon Travelers' disclaimer of coverage, and determined that the disclaimer is valid and enforceable.   The disclaimer by Travelers was based on the clear and unambiguous language of the policy excluding coverage if plaintiff's building was vacant for 60 consecutive days prior to the loss, and the record establishes that the building was vacant within the meaning of the policy for the requisite period (see, Nurnberg v. Citizens Cas. Co. of N. Y., 18 A.D.2d 650, 235 N.Y.S.2d 551, affd. 13 N.Y.2d 681, 241 N.Y.S.2d 169, 191 N.E.2d 672).   The court also properly denied that part of plaintiff's motion seeking, in the alternative, leave to amend the amended complaint to allege a cause of action for reformation.  “While leave to amend should be freely given (see, CPLR 3025[b] ), a proposed amendment which is devoid of merit should not be permitted” (West Branch Realty Corp. v. Exchange Ins. Co., 260 A.D.2d 473, 688 N.Y.S.2d 228).   The record contains no proof that the policy was executed under either a mutual mistake or a unilateral mistake coupled with fraud (see, Loyalty Life Ins. Co. v. Fredenberg, 214 A.D.2d 297, 299-300, 632 N.Y.S.2d 901;  Town of German Flats v. Aetna Cas. & Sur. Co., 174 A.D.2d 1003, 1004, 572 N.Y.S.2d 819, lv. denied 78 N.Y.2d 860, 576 N.Y.S.2d 218, 582 N.E.2d 601).   Rather, the record establishes only a unilateral mistake by plaintiff (see, Metzger v. Aetna Ins. Co., 227 N.Y. 411, 415-416, 125 N.E. 814;  Bardi v. Farmers Fire Ins. Co., 260 A.D.2d 783, 786, 687 N.Y.S.2d 768, lv. denied 93 N.Y.2d 815, 697 N.Y.S.2d 563, 719 N.E.2d 924, rearg. denied 94 N.Y.2d 839, 702 N.Y.S.2d 587, 724 N.E.2d 379).

 The court erred, however, in denying the cross motions of defendants for summary judgment dismissing the amended complaint, and thus we modify the judgment accordingly.   Plaintiff had conclusive presumptive knowledge of the terms of the policy prior to the loss and took no action to close the gap in coverage resulting from the exclusion for vacancy (see, Madhvani v. Sheehan, 234 A.D.2d 652, 654-655, 650 N.Y.S.2d 490;  Rogers v. Urbanke, 194 A.D.2d 1024, 1024-1025, 599 N.Y.S.2d 697;  Rotanelli v. Madden, 172 A.D.2d 815, 817, 569 N.Y.S.2d 187, lv. denied 79 N.Y.2d 754, 581 N.Y.S.2d 281, 589 N.E.2d 1263).   Plaintiff's request for insurance neither triggered a duty on defendants' part to recommend coverage in the event that the building was vacant, nor “relieve[d] plaintiff of its obligation to read the policy, which contained an express exclusion” for vacancy (L.C.E.L. Collectibles v. American Ins. Co., 228 A.D.2d 196, 197, 643 N.Y.S.2d 102).

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: