BLAKE v. Guideone Insurance Company, Nonparty Respondent. (2007)

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered May 31, 2006, which, in a action for personal injuries and wrongful death caused by the rolling over of a van in which plaintiffs or their decedents were passengers, denied plaintiffs' motion to amend the complaint so as to add the van's insurer, unanimously affirmed, without costs.

The proposed amendment, which seeks to add claims of fraud and fraudulent concealment against the van's insurer based on its failure to warn the van's owner of the van's rollover risk, was properly denied for lack of merit (see Thompson v. Cooper, 24 A.D.3d 203, 205, 806 N.Y.S.2d 32 [2005] ).   In the absence of a fiduciary relationship between the van's owner and its insurer, the insurer was under no duty to warn the owner of the van's rollover risk (see McGarr v. Guardian Life Ins. Co., 19 A.D.3d 254, 256, 799 N.Y.S.2d 19 [2005];  Elghanian v. Harvey, 249 A.D.2d 206, 671 N.Y.S.2d 266 [1998] ).   We have considered plaintiffs' other contentions and find them unavailing.