Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

FORD MOTOR CREDIT COMPANY, Plaintiff-Appellant, Denise Hall, Plaintiff, v. ATLANTIC MUTUAL INSURANCE COMPANY, Defendant-Respondent.

Decided: May 16, 2002

ANDRIAS, J.P., BUCKLEY, SULLIVAN, and ELLERIN, JJ. John M. Flannery, for Plaintiff-Appellant. Bradley L. Mitchell, for Defendant-Respondent.

Order, Supreme Court, New York County (Joan Madden, J.), entered on or about October 29, 2001, which granted defendant's motion to reject the report of the Special Referee in this matter and denied plaintiff-appellant's cross motion to confirm such report, and, upon the grant of reargument and renewal, adhered to the prior order of the same court (Salvador Collazzo, J.), entered May 9, 1997, granting defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

 While it is true that one of the binders issued by the insurance broker indicated that plaintiff Ford Motor Credit Company (FMCC) was to be named as an additional insured in the policy covering the automobile leased by plaintiff Hall, the policy subsequently issued by defendant did not name FMCC as an additional insured and “where the provisions of an insurance policy are clear, the contract must be enforced as written” (Moshiko, Inc. v. Seiger & Smith, Inc., 137 A.D.2d 170, 175, 529 N.Y.S.2d 284, affd. in part and appeal dismissed in part 72 N.Y.2d 945, 533 N.Y.S.2d 52, 529 N.E.2d 420;  see also, Charnowitz v. GEICO, 177 A.D.2d 320, 321, 575 N.Y.S.2d 875).   Although FMCC seeks to reform the policy to include itself as an additional insured, it has not come forward with the necessary “evidence of a very high order” “to overcome the heavy presumption that [the] deliberately prepared and executed written instrument manifested the true intention of the parties” (George Backer Mgt. Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062;  see also, Chimart Assocs. v. Paul, 66 N.Y.2d 570, 574, 498 N.Y.S.2d 344, 489 N.E.2d 231).   While there was evidence before the Special Referee that the vehicle lessee, Hall, told the broker that FMCC was to be named as an additional insured, there was no evidence that the broker communicated that direction to defendant and thus no basis for the conclusion, necessary to render FMCC's claim for reformation viable, that defendant, although intending to name FMCC as an additional insured, simply neglected to do so (see, id.).