AMERICAN CLEANERS INC v. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (2009)

In an action, inter alia, in effect, for a judgment declaring that the plaintiff is covered by an insurance policy issued by the defendant American International Specialty Lines Insurance Company naming the defendant Konover & Associates, Inc., as the insured, the plaintiff appeals from (1) an order of the Supreme Court, Orange County (Owen, J.), dated September 16, 2008, which granted the motion of the defendant American International Specialty Lines Insurance Company, and the separate motion of the defendants Konover & Associates, Inc., Konover Management Corporation, and Koncal Associates Limited Partnership for summary judgment and denied the plaintiff's cross motion for leave to amend the complaint to interpose additional causes of action, and (2) a judgment of the same court dated November 10, 2008, which, upon the order, among other things, declared, in effect, that the plaintiff is not covered by the subject insurance policy.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 The Supreme Court properly granted the motion of the defendant American International Specialty Lines Insurance Company (hereinafter American International) for summary judgment.  “The four corners of an insurance agreement govern who is covered and the extent of coverage” (Sixty Sutton Corp. v. Illinois Union Ins. Co., 34 A.D.3d 386, 388, 825 N.Y.S.2d 46;  see Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, 33, 418 N.Y.S.2d 76, affd. 49 N.Y.2d 924, 428 N.Y.S.2d 675, 406 N.E.2d 490).   Moreover, where a third party seeks the benefit of coverage, the terms of the policy must clearly evince such intent (see Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d at 33, 418 N.Y.S.2d 76).   Here, by submitting the subject policy of insurance, which lists the defendant Konover & Associates, Inc., as the only named insured, American International demonstrated, prima facie, that the plaintiff was not entitled to a declaration of coverage.   In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Likewise, the court properly granted the motion of the defendants Konover & Associates, Inc., Konover Management Corporation, and Koncal Associates Limited Partnership (hereinafter the Konover defendants) for summary judgment.   The Konover defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting a lease executed by Koncal Associates Limited Partnership, as landlord, and the plaintiff, as tenant, which did not obligate them to name the plaintiff as an additional insured.   In opposition to this showing, the plaintiff failed to raise a triable issue of fact.

 Furthermore, the court providently exercised its discretion in denying the plaintiff's cross motion, made on the eve of trial, for leave to amend the complaint to add causes of action sounding in breach of contract, common-law indemnification, and indemnification under the Navigation Law. “Generally, ‘[i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ ” (Morris v. Queens Long Is. Med. Group, P.C., 49 A.D.3d 827, 854 N.Y.S.2d 222, quoting G.K. Alan Assoc., Inc. v. Lazzari, 44 A.D.3d 95, 99, 840 N.Y.S.2d 378, affd. 10 N.Y.3d 941, 862 N.Y.S.2d 855, 893 N.E.2d 133;  see CPLR 3025[b];  Sampson v. Contillo, 55 A.D.3d 591, 865 N.Y.S.2d 137;  Lucido v. Mancuso, 49 A.D.3d 220, 851 N.Y.S.2d 238;  Trataros Constr., Inc. v. New York City School Constr. Auth., 46 A.D.3d 874, 874, 849 N.Y.S.2d 86).  “However, where the application for leave to amend is made long after the action has been certified for trial, ‘judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious' ” (Morris v. Queens Long Is. Med. Group, P.C., 49 A.D.3d at 828, 854 N.Y.S.2d 222, quoting Clarkin v. Staten Isl. Univ. Hosp., 242 A.D.2d 552, 552, 662 N.Y.S.2d 91).  “Moreover, when ․ leave is sought on the eve of trial, judicial discretion should be exercised sparingly” (Morris v. Queens Long Is. Med. Group, P.C., 49 A.D.3d at 828, 854 N.Y.S.2d 222;  see Comsewogue Union Free School Dist. v. Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523, 525, 790 N.Y.S.2d 220;  Rosse-Glickman v. Beth Israel Med. Ctr.-Kings Hwy. Div., 309 A.D.2d 846, 766 N.Y.S.2d 67).  “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom” (Cohen v. Ho, 38 A.D.3d 705, 706, 833 N.Y.S.2d 542).   The Supreme Court properly weighed all of these considerations, including the plaintiff's failure to proffer a reasonable excuse for the delay, in denying the plaintiff's cross motion.