Meyers v. Go-Pro Contracting, Inc.

—In an action, inter alia, to recover damages for injury to property, the plaintiff appeals from stated portions of an order of the Supreme Court, Nassau County (Lockman, J.), entered August 24, 1998, which, among other things, granted that branch of the motion by the defendant North Sea Insurance Company which was for leave to amend its answer to seek rescission of an underlying insurance contract. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff hired the defendant Go-Pro Contracting, Inc. (hereinafter Go-Pro) to install a roof on her home. During the work, which required the use of a propane torch, her home was damaged by a fire. The plaintiff thereafter commenced this action against Go-Pro and North Sea Insurance Company (hereinafter North Sea), the insurer of Go-Pro, to recover damages against Go-Pro for negligence and breach of contract, and for a declaration that North Sea was obligated to indemnify Go-Pro for any judgment against it in favor of the plaintiff. Given the lack of prejudice or surprise to the plaintiff, the Supreme Court did not improvidently exercise its discretion in granting that branch of the motion of North Sea which was for leave to amend its answer to seek the rescission of an underlying insurance contract (see, Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204). The plaintiff’s remaining contentions, which concern the merits of the proposed amendment, and whether North Sea [363] waived and/or is estopped from asserting a defense of rescission, raise questions of fact for trial. S. Miller, J. P., Sullivan, Krausman and H. Miller, JJ., concur.