Hartford Casualty Insurance Company v. Vengroff Williams & Associates, Inc.
| Decision Date | 23 June 2003 |
| Citation | 761 N.Y.S.2d 308,306 A.D.2d 435 |
| Court | New York Supreme Court — Appellate Division |
| Parties | HARTFORD CASUALTY INSURANCE COMPANY, Respondent,<BR>v.<BR>VENGROFF WILLIAMS & ASSOCIATES, INC., et al., Appellants. |
Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion which was for leave to amend the answer to assert a counterclaim alleging breach of contract and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.
In this action, the plaintiff seeks a declaration that it is not obligated to defend or indemnify the defendants regarding personal injury actions in connection with a fire which occurred at a building owned by the defendant Henry Vengroff, the chief executive officer of the defendant Vengroff Williams & Associates, Inc. In their answer, the defendants interposed a counterclaim alleging fraud. The Supreme Court granted the plaintiff's motion to dismiss the counterclaim for failure to state a cause of action. The Supreme Court also, in effect, denied the defendants' cross motion, inter alia, for leave to amend their answer to replead the counterclaim alleging fraud and assert certain counterclaims.
The Supreme Court properly dismissed the defendants' counterclaim alleging fraud as the counterclaim failed to set forth the requisite elements of fraud with particularity (see Commodari v Long Is. Univ., 295 AD2d 302, 303 [2002]; Jae Heung Yoo v Se Kwang Kim, 289 AD2d 451, 452 [2001]).
The Supreme Court also properly exercised its discretion in denying that branch of the defendants' cross motion which was for leave to amend their answer to replead the fraud counterclaim. Motions for leave to amend pleadings should be liberally granted absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Smith v Peterson Trust, 254 AD2d 479, 480 [1998]). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see Tarantini v Russo Realty Corp., 273 AD2d 458, 459 [2000]; Alejandro v Riportella, 250 AD2d 556, 557 [1998]). While the plaintiff has failed to establish any prejudice, the Supreme Court nevertheless properly exercised its discretion in denying that branch of the defendants' cross motion, because the defendants again failed to set forth the requisite elements of fraud with particularity (see Commodari v Long Is. Univ., supra; Jae Heung Yoo v Se Kwang Kim, supra).
However, we reach a different conclusion with respect to that branch of the defendants' cross motion which was for leave to amend their answer to assert a counterclaim alleging breach of contract. Generally speaking, a civil litigant cannot recover damages for...
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