Opinion
March 29, 1976
Order, Supreme Court, New York County, entered June 20, 1975, unanimously modified, on the law and the facts and in the exercise of discretion, without costs and without disbursements, to permit the service of a second amended complaint in the form proposed attached to the plaintiff's motion, and the defendant is permitted to continue the suspended examinations before trial of the plaintiff and his wife upon the basis of said second amended complaint, and otherwise affirmed. Plaintiff obtained a major medical insurance policy from the defendant. Subsequently, a son was born to the plaintiff and became ill. When the plaintiff requested reimbursement for the medical expenses for the son, the defendant denied liability on the ground that the plaintiff had failed to comply with the procedure to add a beneficiary under the policy. Plaintiff brought this action in 1970, and the theory of recovery in the amended complaint was for contract reformation. Three years later, the plaintiff moved to serve a second amended complaint on the theory of negligent misrepresentation. While there are some minor factual changes, it is the theory of recovery that is different not the substance. The court at Special Term imposed costs payable to defendant's attorney because of the laches, but permitted the amendment, although there are some questions as to whether the additional minor factual changes were permitted. No prejudice being shown, the second amended complaint as submitted should be permitted to be served. (See Symphonic Electronic Corp. v Audio Devices, 24 A.D.2d 746; and Minasy v Foster Wheeler Corp., 15 A.D.2d 759.) However, with the new theory of the complaint, the defendant should be permitted to continue the examination of the plaintiff and his wife so as to be fully prepared in the premises. The appeal from the order of November 27, 1974 is unanimously dismissed, without costs and without disbursements, as superseded.
Concur — Markewich, J.P., Kupferman, Lupiano, Capozzoli and Nunez, JJ.