HANOVER INSURANCE COMPANY v. FINNERTY

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in dismissing this subrogation action upon the ground that, in executing a general release, plaintiff's insured failed to reserve plaintiff's subrogation rights against defendant. The unambiguous reservation of the insured's claim for underinsurance benefits from the insurer encompassed a reservation of the insurer's right to subrogation ( see, Connecticut Fire Ins. Co. v Erie Ry. Co., 73 N.Y. 399; Matter of State Farm Mut. Ins. Co. v Trapanotto, 166 A.D.2d 537). Moreover, defendant's post-answer motion to dismiss based upon the defenses of waiver, release and Statute of Limitations was untimely ( see, CPLR 3211 [e]; Burns v Binghamton Hous. Auth., 36 A.D.2d 1004).

The court properly denied plaintiff's cross motion to amend the complaint to assert a cause of action for implied indemnification. A motion to amend the complaint should be denied where, as here, the proposed amendment lacks merit ( see, Goldstein v Barco of Cal., 109 A.D.2d 817, 818); plaintiff's remedy is subrogation, not indemnification ( see, State Farm Mut. Auto. Ins. Co. v Regional Tr. Serv., 79 A.D.2d 858, 859). Thus, we modify the order on appeal by denying defendant's motion and reinstating the complaint.