DeForte v. Allstate Ins. Co.
| Decision Date | 15 December 1978 |
| Citation | 411 N.Y.S.2d 726,66 A.D.2d 1028 |
| Parties | Florence DeFORTE, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Nathaniel A. Barrell by Bernard B. Freedman, Buffalo, for appellant.
Brown, Maloney, Gallup, Roach & Busteed, P. C., by John Y. Gallup, Buffalo, for respondent.
Before MOULE, J. P., and CARDAMONE, DILLON, HANCOCK and SCHNEPP, JJ.
While driving home from a hardware store, plaintiff, Florence DeForte, was stopped as a result of radar detection. When she opened her car door to get out, her dog jumped out and bit the arresting police officer.
The officer sued Mrs. DeForte in March, 1973. The papers were forwarded to respondent, Allstate Insurance Company, her homeowner's liability insurance carrier whose policy included coverage of Mrs. DeForte's automobile. Following its disclaimer, plaintiff commenced a declaratory judgment action against Allstate in July, 1975. In October, 1975 the City of Buffalo also sued Mrs. DeForte. Its claim was for the lost time and wages it had paid the police officer as a result of his injuries. When the declaratory judgment action came to trial in April, 1977 an attempt was made to introduce evidence regarding the claim of the City of Buffalo. Allstate contended that this claim was not included in plaintiff's complaint. As a result, the trial was suspended in order for plaintiff to move to serve a supplemental complaint. Plaintiff moved for this relief and it is from its denial at Special Term that plaintiff appeals.
A party may move at any time to amend or supplement a pleading and "leave shall be freely given" (CPLR 3025(b)). The purpose of CPLR 3025(b) is to ensure full litigation of a controversy and this section is to be liberally construed to permit pleadings to be amended or supplemented, absent real prejudice or surprise and upon such terms as may be just under the circumstances (Rife v. Union Coll., 30 A.D.2d 504, 505, 294 N.Y.S.2d 460, 461; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.11; Siegel, New York Practice, § 237). Plainly there is no surprise to respondent in the assertion of what is a derivative claim respecting damages only in a claim of which Allstate already had full notice. Under these circumstances, there is no prejudice. Upon consideration of the motion, Special Term should not examine the merits or legal sufficiency of the proposed amended or supplemental pleadings unless the proposed pleading is...
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