Rosenthal v. Allstate Ins. Co.
| Decision Date | 09 March 1998 |
| Citation | 248 A.D.2d 455,670 N.Y.S.2d 862 |
| Parties | , 1998 N.Y. Slip Op. 2055 Irving ROSENTHAL, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Feldman & Rudy, P.C., Westbury (Bruce W. Farquharson, of counsel), for Appellant.
Rosenthal & Associates, P.C., Kew Gardens (Richard Rosenthal, of counsel), for Respondent.
Before PIZZUTO, J.P., and SANTUCCI, JOY and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of a homeowner's insurance policy, the defendant appeals from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered April 4, 1997, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $29,309.11.
ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.
In this case the plaintiff is seeking to recover, inter alia, the value of certain items which were allegedly damaged by a flood in his home. Subsequent to the flood the plaintiff allegedly replaced a number of the items which were then allegedly stolen, along with a number of other items, during a burglary on the night before the defendant's adjusters were to visit the premises.
Many erroneous rulings by the trial court require a new trial. The Supreme Court erred in granting the plaintiff's application to dismiss the defendant's first four affirmative defenses, which were grounded in fraud, and in denying its application to replead them. Pleadings may be freely amended at the Supreme Court's discretion during or even after trial so long as no undue prejudice results (see, Rothstein v. City Univ. of N.Y., 194 A.D.2d 533, 599 N.Y.S.2d 39). In deciding whether to grant an application to amend pleadings, the Supreme Court should consider such factors as the delay in moving, surprise, and significant prejudice, the latter being the foremost consideration (see, Murray v. City of New York, 43 N.Y.2d 400, 401 N.Y.S.2d 773, 372 N.E.2d 560). Here, the plaintiff would not have suffered any prejudice by the Supreme Court's allowing the defendant to replead the affirmative defenses, since the defendant's theory of the case was always that the fraud provision of the insurance policy it issued to the plaintiff had been violated. Moreover, since the affirmative defenses were included in the original answer, served on April 13, 1994, the plaintiff should not have waited until the eve of trial to move to dismiss these defenses. Further, there was ample proof adduced at trial that the plaintiff may have violated the fraud provision of the policy.
The Supreme Court also erred in permitting the plaintiff's witnesses to testify that they had been told that four other burglaries allegedly occurred in the plaintiff's neighborhood on the night that the plaintiff's house was burglarized, since such testimony constituted inadmissible hearsay (see, Sadowsky v. Chat Noir, Inc., 64 A.D.2d 697, 407 N.Y.S.2d 562)...
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...memory and had failed to produce log that would have shown time or order of patient arrivals. Rosenthal v. Allstate Ins. Co. , 248 A.D.2d 455, 670 N.Y.S.2d 862 (2d Dept 1998). he insured’s “contents listing” did not satisfy the business record exception to hearsay rule and was inadmissible ......
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...memory and had failed to produce log that would have shown time or order of patient arrivals. Rosenthal v. Allstate Ins. Co. , 248 A.D.2d 455, 670 N.Y.S.2d 862 (2d Dept 1998). he insured’s “contents listing” did not satisfy the business record exception to hearsay rule and was inadmissible ......
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...to cross-examine any witness who has testified to any disputed fact during direct examination. Rosenthal v. Allstate Insurance Co ., 248 A.D.2d 455, 670 N.Y.S.2d 862 (2d Dept. 1998); Herbert H. Post & Co. v. Sidney Bitterman, Inc ., et. al. , 219 A.D.2d 214, 639 N.Y.S.2d 329 (1st Dept. 1996......
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Documents
...memory and had failed to produce log that would have shown time or order of patient arrivals. Rosenthal v. Allstate Ins. Co. , 248 A.D.2d 455, 670 N.Y.S.2d 862 (2d Dept 1998). The insured’s “contents listing” did not satisfy the business record exception to hearsay rule and was inadmissible......