HOME INSURANCE COMPANY v. LEPRINO FOODS COMPANY

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

The HOME INSURANCE COMPANY, etc., Plaintiff-Respondent, v. LEPRINO FOODS COMPANY, etc., Defendant-Appellant.

Decided: May 27, 2004

NARDELLI, J.P., LERNER, FRIEDMAN, MARLOW, GONZALEZ, JJ. Robinson Waters & D'Orisio, Denver, CO (Anthony L. Leffert of counsel), for appellant. Soffer & Reich, LLP, New York (Victor K. Soffer of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard F. Braun, J.), entered October 16, 2003, which awarded plaintiff summary judgment in the principal amount of $58,653, unanimously affirmed, with costs.

There was no need to resolve issues of fact regarding an alleged oral agreement.   Even if the parties had come to such an agreement with respect to the retrospective adjustment, Condition # 8 of the policy expressly prohibited oral modifications.  (The inadvertent omission of the complete policy jacket from the original moving papers was adequately explained in the reply affidavit submitted by the former Casualty Coverage Director of plaintiff's Claims Department.)   Plaintiff's no-oral-modification argument, although raised for the first time on reply, was directly responsive to defendant's opposition to the summary judgment motion (Davison v. Order Ecumenical, 281 A.D.2d 383, 721 N.Y.S.2d 282).