                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   521549
________________________________

DANIEL F. IMRIE II,
                      Appellant,
     v

ANDREW R. RATTO et al.,
                    Defendants,
      and

ERIE INSURANCE COMPANY,
                    Respondent.

(Action No. 1.)
_________________________________           MEMORANDUM AND ORDER

DANIEL F. IMRIE II,
   Individually and as Assignee
   of ANDREW RATTO et al.,
                    Appellant,
      v

JEFFREY D. HOWARD et al.,
                    Defendants,
      and

ERIE INSURANCE COMPANY,
                    Respondent.

(Action No. 2.)
________________________________


Calendar Date:   November 14, 2016

Before:   McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.
                              -2-                521549

                           __________


      The Clements Firm, Glens Falls (Thomas G. Clements of
counsel), for Daniel F. Imrie II, appellant.

      Rupp Baase Pfalzgraf Cunningham, LLP, Buffalo (Sean W.
Costello of counsel), for respondent.

                           __________


McCarthy, J.P.

      Appeals (1) from an order of the Supreme Court (Krogmann,
J.), entered May 5, 2015 in Warren County, which, among other
things, granted a motion by defendant Erie Insurance Company in
action No. 1 for summary judgment dismissing the complaint
against it, and (2) from an order of said court (Auffredou, J.),
entered February 8, 2016 in Warren County, which, among other
things, denied plaintiff's motion in action No. 1 to renew.

      Defendant Andrew R. Ratto bought an auto repair business
and garage in January 2010 from plaintiff by securing two
mortgages on the property. The mortgages required Ratto to
maintain insurance for, among other things, any "loss by fire"
and to name plaintiff as the mortgagee on the insurance policy.
After Ratto began making payments late and plaintiff learned that
Ratto was facing a tax foreclosure, plaintiff commenced action
No. 1, a foreclosure action against Ratto. A week later, the
repair business and garage was destroyed by a fire. After the
fire, plaintiff learned that, contrary to the terms of the
mortgages, Ratto did not have fire insurance coverage, let alone
insurance coverage that named plaintiff as the mortgagee on the
insurance policy. However, a third-party – Ratto Restorations,
Inc. (hereinafter the corporation) – insured the property against
fire loss with defendant Erie Insurance Company. Plaintiff was
not listed as the mortgagee or otherwise referenced on the
corporation's insurance policy.
                              -3-                521549

      In September 2013, pursuant to an amended complaint,
plaintiff added Erie as a defendant to action No. 1 by seeking a
declaratory judgment determining that Erie was either "legally
and equitably indebted" to him for the proceeds of the insurance
policy, that the policy should be reformed to add him as the loss
payee or that he had an equitable lien on any insurance payments.
During discovery, Erie had the opportunity to depose plaintiff.
Despite plaintiff's discovery demands, however, plaintiff did not
receive any records from Erie related to execution of the
insurance policy and did not have the opportunity to depose any
representatives of Erie familiar with the insurance policy. Nine
months after plaintiff had submitted discovery demands,
interrogatories and notices of depositions, and without having
received any substantive response from Erie regarding the
execution of the insurance policy, Erie moved for summary
judgment dismissing the complaint. Plaintiff opposed the motion
on grounds that included outstanding discovery requests and also
moved to amend the complaint to add the corporation as a
defendant and to compel discovery against Ratto and Erie. In May
2015, Supreme Court (Krogmann, J.) granted Erie's motion for
summary judgment and denied plaintiff's motion to amend the
complaint and compel discovery from Erie. Plaintiff appeals from
that order.

      In July 2015, Ratto and the corporation assigned their
rights in the insurance policy to plaintiff, and plaintiff,
thereafter, commenced action No. 2 against Erie and its
principal. Plaintiff also moved to renew, among other things,
his opposition to Erie's motion for summary judgment in action
No. 1 and also moved to consolidate the actions. In February
2016, Supreme Court (Auffredou, J.) denied plaintiff's motion to
renew and ordered a joint trial of the actions, but denied
plaintiff's motion to formally consolidate. Plaintiff appeals
from that order.

      Erie's motion for summary judgment should have been denied
as premature. "[A] summary judgment motion is properly denied as
premature when the nonmoving party has not been given reasonable
time and opportunity to conduct disclosure relative to pertinent
evidence that is within the exclusive knowledge of the movant or
a codefendant" (Metichecchia v Palmeri, 23 AD3d 894, 895 [2005];
                              -4-                521549

see Gitman v Martinez, 139 AD3d 1175, 1176 [2016]). As is
relevant to plaintiff's claim, a party seeking reformation of a
contract must establish, by clear and convincing evidence, either
that the writing at issue was executed under mutual mistake or
that there was a fraudulently induced unilateral mistake (see
George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 218-
219 [1978]; Gunther v Vilceus, 142 AD3d 639, 640 [2016], lv
denied ___ NY3d ___ [Dec. 20, 2016]; Herron v Essex Ins. Co., 34
AD3d 913, 914 [2006], lv dismissed 8 NY3d 856 [2007]; Loyalty
Life Ins. Co. v Fredenberg, 214 AD2d 297, 299 [1995]).

      The importance of documents and depositions that plaintiff
sought but had not been provided is readily apparent. The
premise of plaintiff's cause of action is that, in executing the
relevant insurance policy, the corporation and Erie both intended
to include plaintiff as a loss payee but that, by mutual mistake,
he was omitted. Erie had exclusive knowledge of its
understanding of the intended coverage and any intended loss
payees at the time of the execution of the relevant insurance
policy. Moreover, it is likely to be in exclusive possession of
any collateral documents memorializing the intended scope of the
relevant insurance policy. Further, plaintiff's contention that
Erie has exclusive possession of employees and materials that
could shed light on its intent as to the insurance policy is
patently reasonable and not merely speculation (compare Rochester
Linoleum & Carpet Ctr., Inc. v Cassin, 61 AD3d 1201, 1202
[2009]). Under such circumstances, Erie's motion for summary
judgment should have been denied without prejudice as premature
(see Greener v Town of Hurley, 140 AD3d 1285, 1286 [2016]; Gitman
v Martinez, 139 AD3d at 1176; Metichecchia v Palmeri, 23 AD3d at
895; Rosalie Estates v Colonia Ins. Co., 227 AD2d 335, 336
[1996]).

      Plaintiff's contention that Supreme Court also erred in
failing to join the corporation as a necessary party is moot.
The corporation assigned its interest in the insurance policy to
plaintiff. Thus, the issue as to whether the corporation could
have been inequitably affected by a judgment in action No. 1
prior to that assignment (see generally CPLR 1001) is rendered
moot by the fact that the corporation no longer has an interest
in the insurance policy (see e.g. Matter of King v Jackson, 52
                              -5-                  521549

AD3d 974, 975 [2008]; Matter of Weaver v Ambach, 107 AD2d 926,
927 [1985]). Finally, our determination renders plaintiff's
contention that Supreme Court erred in denying his motion to
renew his opposition to Erie's motion for summary judgment
academic (see Gitman v Martinez, 139 AD3d at 1177). Plaintiff's
remaining contentions are either academic or without merit.

     Garry, Rose, Mulvey and Aarons, JJ., concur.



      ORDERED that the order entered May 5, 2015 is modified, on
the law, without costs, by reversing so much thereof as granted
the motion of defendant Erie Insurance Company for summary
judgment dismissing the complaint in action No. 1 against it;
said motion denied, without prejudice; and, as so modified,
affirmed.

      ORDERED that the order entered February 8, 2016 is
affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
