FAHRENHOLZ v. The Kreiner Company, Inc., Defendant-Respondent.  (Appeal No. 2.)

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

Thomas FAHRENHOLZ, Plaintiff-Respondent, v. SECURITY MUTUAL INSURANCE COMPANY, Defendant-Appellant, The Kreiner Company, Inc., Defendant-Respondent.  (Appeal No. 2.)

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Law Office of Roy A. Mura, Buffalo (James M. DeVoy of Counsel), for Defendant-Appellant. Duke, Holzman, Yaeger & Photiadis LLP, Buffalo (Matthew J. Beck of Counsel), for Plaintiff-Respondent. Lustig & Brown, LLP, Buffalo (Cheryl A. Green of Counsel), for Defendant-Respondent.

Plaintiff commenced this action seeking, inter alia, reformation of a policy of insurance issued by defendant Security Mutual Insurance Company (Security Mutual) through its agent, defendant The Kreiner Company, Inc. (Kreiner).  The policy covered residential property in the City of Buffalo that was damaged by fire.   Supreme Court properly granted those parts of plaintiff's motion seeking summary judgment on the cause of action seeking reformation and partial summary judgment on liability on the cause of action for breach of contract.   It is undisputed that the policy incorrectly identified the named insured as “Timothy R. Fahrenholz [the former owner of the property and plaintiff's deceased brother] % Thomas Fahrenholz[,i.e., plaintiff].”   It also is undisputed that, following his brother's death, plaintiff acquired title to the property and paid the insurance premium.   Plaintiff submitted evidence establishing that the policy correctly identified the property that Security Mutual agreed to insure (see DeSantis v. Dryden Mut. Ins. Co., 241 A.D.2d 916, 661 N.Y.S.2d 395).   In addition, plaintiff submitted evidence establishing that, under the underwriting guidelines of Security Mutual, the identity of the insured was not a factor in evaluating the risk that Security Mutual agreed to cover (see Zielinski v. Associated Mut. Ins. Co., 217 A.D.2d 938, 629 N.Y.S.2d 894).  “Having accepted plaintiff['s] premium payment, having intended to insure the very property it insured, and having asserted no reason for denying the assumption of risk in question, there is no justification for denying plaintiff[ ] the equitable remedy of reformation” (Crivella v. Transit Cas. Co., 116 A.D.2d 1007, 1008, 498 N.Y.S.2d 627).   Because it is undisputed that Security Mutual failed to pay plaintiff for the fire loss, the court properly granted that part of plaintiff's motion seeking partial summary judgment on liability on the cause of action for breach of contract.   In view of the award of summary judgment to plaintiff, moreover, the court properly granted that part of the cross motion of Kreiner seeking summary judgment dismissing Security Mutual's cross claims against it.

 We reject the contention of Security Mutual that the court erred in entertaining the motion and cross motion on the merits inasmuch as plaintiff and Kreiner failed to comply with CPLR 3212(a) (see generally Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995).   Pursuant to that section, a party seeking summary judgment must do so within 120 days after the filing of the note of issue, “except with leave of court on good cause shown” (CPLR 3212 [a] ).   The court has broad discretion in determining whether the party seeking summary judgment has shown “good cause” for an untimely motion (id.;   see Burnell v. Huneau, 1 A.D.3d 758, 760, 767 N.Y.S.2d 163;  Luciano v. Apple Maintenance & Servs., 289 A.D.2d 90, 734 N.Y.S.2d 153).   Here, plaintiff's attorney provided an adequate explanation for the delay in an affirmation in support of the motion (see Stimson v. E.M. Cahill Co., Inc., 8 A.D.3d 1004, 1005, 778 N.Y.S.2d 585;   Luciano, 289 A.D.2d at 91, 734 N.Y.S.2d 153).   The court also properly considered the merits of the cross motion inasmuch as it seeks relief nearly identical to the relief sought by plaintiff in his motion (see generally Bressingham v. Jamaica Hosp. Med. Ctr., 17 A.D.3d 496, 497, 793 N.Y.S.2d 176;  Miranda v. Devlin, 260 A.D.2d 451, 452, 688 N.Y.S.2d 578).   Finally, the court properly exercised its discretion in awarding plaintiff interest on the verdict at the statutory rate, calculated from the date of the commencement of the action (see CPLR 5001 [a];  cf. Zielinski, 217 A.D.2d at 939, 629 N.Y.S.2d 894).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: