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Anand v. GA Insurance

Appellate Division of the Supreme Court of New York, Second Department
Jun 3, 1996
228 A.D.2d 397 (N.Y. App. Div. 1996)

Opinion

June 3, 1996

Appeal from the Supreme Court, Nassau County (Robbins, J.).


Ordered that the order is modified, on the law, by deleting the provisions thereof granting the motion and denying the cross motion, and substituting therefor provisions denying the motion and granting that branch of the cross motion which was to add causes of action to reform the policy of insurance; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, the amended complaint is deemed to have been duly served, and the defendant is directed to serve an answer thereto within 20 days of service of this decision and order upon it with notice of entry.

The plaintiff Azad Anand is a physician who is the sole shareholder of a radiological medical practice known as Rego Park Radiology, P.C. (hereinafter the P.C.). He is also the sole shareholder of Rego Junction, Inc. (hereinafter Rego Junction), which owns the condominium in which the business of the P.C. is conducted. For the period February 24, 1992, to February 24, 1993, Rego Junction was insured by a special business owners policy of insurance issued by the defendant. The only business conducted by Rego Junction was its ownership of the premises in which the P.C. conducted its radiological business.

In March and April 1992, the premises owned by Rego Junction, which had yet to open for business, was burglarized. These burglaries occurred during the construction of the office and the only items taken were parts of a magnetic resonance imaging machine (hereinafter MRI) that the P.C. had purchased from Siemens Medical Systems, Inc. (hereinafter Siemens). Because the March burglary reportedly occurred during the installation of the MRI, it was reported only to Siemens as there was a possibility that replacement parts would be furnished by Siemens at no charge to the P.C. Following the April burglary, the insurance broker who sold the special business owners policy to Rego Junction was promptly notified. However, it appears that due to the highly complicated and technical nature of the MRI machine, a Siemens technician had to identify and value each of the missing parts before an itemized claim could be made. A property loss notice was submitted on or about April 24, 1992.

Under the circumstances of this case, the court improvidently exercised its discretion in denying that branch of the cross motion which was to add causes of action to reform the policy of insurance. As this Court has previously held, when it is established that as a result of an innocent mistake of an applicant for insurance the identity of the owner is misdescribed, the error is mutual for purposes of reformation, notwithstanding that the insurer is unaware of the error ( see, Crivella v Transit Cas. Co., 116 A.D.2d 1007; Court Tobacco Stores v. Great E. Ins. Co., 43 A.D.2d 561). Indeed, "`[t]he name of the insured in the policy is not always important if the intent to cover the risk is clear'" ( Crivella v. Transit Cas. Co., supra, at 1008, quoting Matter of Lipshitz v. Hotel Charles, 226 App. Div. 839, 840, affd 252 N.Y. 518; see also, Testa v. Utica Fire Ins. Co., 203 A.D.2d 357; Abulaynain v. New York Merchant Bankers Mut. Fire Ins. Co., 128 A.D.2d 575).

There are issues of fact as to whether the issuance of the business owners policy to Rego Junction rather than to the P.C. was the result of a mutual mistake as to the identity of the actual insured. We also find that issues of fact exist as to whether notice of the burglaries was provided to the defendant within a reasonable time in light of all of the attendant circumstances ( see, Argentina v. Ostego Mut. Fire Ins. Co., 86 N.Y.2d 748). Therefore, the defendant's motion for summary judgment dismissing the complaint should be denied, and further proceedings are warranted on the amended complaint. Rosenblatt, J.P., Miller, Pizzuto and Goldstein, JJ., concur.


Summaries of

Anand v. GA Insurance

Appellate Division of the Supreme Court of New York, Second Department
Jun 3, 1996
228 A.D.2d 397 (N.Y. App. Div. 1996)
Case details for

Anand v. GA Insurance

Case Details

Full title:AZAD ANAND et al., Appellants, v. GA INSURANCE COMPANY OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 3, 1996

Citations

228 A.D.2d 397 (N.Y. App. Div. 1996)
643 N.Y.S.2d 661

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