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643 N.Y.S.2d 679
(Cite as: 228 A.D.2d 476, 643 N.Y.S.2d 679)

Supreme Court, Appellate Division, Second Department, New York.

SIEGFRIED PRESS, INC., et al., Respondents.

June 10, 1996.

Insurer, asserting mutual mistake, brought action to remove "full value endorsement" from policy. The Supreme Court, Orange County, Owen, J., entered judgment on jury verdict for insureds, and insurer appealed. The Supreme Court, Appellate Division, held that: (1) insurer did not meet heavy burden necessary to support removal of endorsement, and (2) endorsement was properly construed in light most favorable to insureds.


West Headnotes

[1] Insurance k1893(1)
(Formerly 217k143(3.1))

Heavy burden was necessary for insurer to show that "full value endorsement" should be removed from policy on grounds of mutual mistake.

[2] Insurance k1893(2)
(Formerly 217k143(3.1))

Insurer's contention that insureds did not specifically request inclusion of "full value endorsement" in policy did not support removal of endorsement on grounds of mutual mistake.

[3] Insurance k1835(1)
(Formerly 217k146.7(5.1))

Ambiguous "full value endorsement" in insurance policy was properly construed in light most favorable to insureds, where insurer drafted it. **680 Bouck, Holloway, Kiernan and Casey, Albany (Thomas J. O'Connor and Judith S. Karpen, of counsel), for appellant.

Weg & Myers, P.C., New York City (Charles Martin Arnold and Joshua L. Mallin, of counsel), for respondents.



*476 In an action, inter alia, to remove a "full value endorsement" provision from the insurance policy issued by the plaintiff to the defendants, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Owen, J.), entered November 22, 1994, which, upon a jury verdict, is in favor of the defendants and against it in the principal sum of $431,400.

ORDERED that the judgment is affirmed, with costs.

[1][2] The plaintiff failed to meet the heavy burden necessary to show that the "full value endorsement" should be removed from the insurance policy issued by the plaintiff to the defendants because it was added thereto by mutual mistake (see, Chimart Assoc. v. Paul, 66 N.Y.2d 570, 498 N.Y.S.2d 344, 489 N.E.2d 231; Matter of Union Indem. Ins. Co. of N.Y., 162 A.D.2d 398, 557 N.Y.S.2d 51). The plaintiff's contention that there was a mutual mistake because the defendants did not specifically request that such a provision be included in the insurance policy is meritless (see, Porter v. Commercial Cas. Ins. Co., 292 N.Y. 176, 184, 54 N.E.2d 353).

[3] In addition, since the plaintiff drafted the ambiguous "full value endorsement", it was properly construed in the light most favorable to the defendants (see, Ruder & Finn v. Seaboard Sure. Co., 52 N.Y.2d 663, 439 N.Y.S.2d 858, 422 N.E.2d 518; Tonkin v. California Ins. Co., 294 N.Y. 326, 62 N.E.2d 215).

The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.