WEST BRANCH REALTY CORP v. EXCHANGE INSURANCE COMPANY (1999)

In an action to recover damages for breach of an insurance contract, the plaintiff appeals, on the ground of inadequacy, from so much of a judgment of the Supreme Court, Putnam County (Sklaver, J.H.O.), entered April 21, 1997, as, upon a jury verdict, is in its favor in the principal amount of $166,635.10, and the defendant cross-appeals, as limited by its brief, from so much of the same judgment as is in favor of the plaintiff and against it.

ORDERED that the judgment is affirmed, without costs or disbursements.

 The Supreme Court properly denied the plaintiff's motion for leave to amend its complaint during trial to assert a cause of action based upon the terms of an insurance binder.   While leave to amend should be freely given (see, CPLR 3025[b] ), a proposed amendment which is devoid of merit should not be permitted (see, Hall Signs v. Aries Striping, 236 A.D.2d 513, 654 N.Y.S.2d 621;  Nasuf Constr. Corp. v. State of New York, 185 A.D.2d 304, 305, 587 N.Y.S.2d 213;  Brown v. Samalin & Bock, 155 A.D.2d 407, 547 N.Y.S.2d 80).   We agree with the trial court that the plaintiff was bound by the terms of the written insurance policy issued seven months before the fire (see, Metzger v. Aetna Ins. Co., 227 N.Y. 411, 416, 125 N.E. 814;  Rogers v. Urbanke, 194 A.D.2d 1024, 1025, 599 N.Y.S.2d 697;  Wausau Underwriters Ins. Co. v. St. Barnabas Hosp., 145 A.D.2d 314, 534 N.Y.S.2d 982).

The trial court properly charged the jury on the burden of proof regarding the affirmative defense of arson (see, Hutt v. Lumbermens Mut. Cas. Co., 95 A.D.2d 255, 466 N.Y.S.2d 28;  see also, Malek v. Federal Ins. Co., 994 F.2d 49, 55 (2nd Cir.1993);  Long Is. Ski Ctr. v. Hartford Fire Ins. Co., 121 A.D.2d 368, 502 N.Y.S.2d 800;  Rossi v. Hartford Fire Ins. Co., 103 A.D.2d 771, 477 N.Y.S.2d 402).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.