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SYDNEY KRAUSE v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY (05/16/68)

COURT OF APPEALS OF NEW YORK 1968.NY.41662 <http://www.versuslaw.com>; 239 N.E.2d 175; 22 N.Y.2d 147 decided: May 16, 1968. SYDNEY KRAUSE, AS TRUSTEE FOR THE BENEFIT OF THE CLASS A CREDITORS OF D. R. COMENZO & CO., INC., PLAINTIFF-APPELLANT,v.AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF-RESPONDENT. AMERICAN EXPRESS COMPANY, THIRD-PARTY DEFENDANT-APPELLANT; CHARLES SELIGSON, AS TRUSTEE IN BANKRUPTCY OF IRA HAUPT & CO., PLAINTIFF, V. FIDELITY AND CASUALTY COMPANY OF NEW YORK, DEFENDANT AND THIRD-PARTY PLAINTIFF-RESPONDENT. AMERICAN EXPRESS COMPANY, THIRD-PARTY DEFENDANT-APPELLANT Krause v. American Guar. & Liab. Ins. Co., 27 A.D.2d 353, affirmed. Seligson v. Fidelity & Cas. Co. of N. Y., 28 A.D.2d 672, affirmed. Counsel Peter H. Kaminer, Edwin J. Wesely, Marie L. McCann, Arthur A. Munisteri and Elizabeth F. Defeis for third-party defendant-appellant in both actions. George J. Hirsch for plaintiff-appellant in the first above-entitled action. Counsel Covington Hardee, William C. Blind, Leonard P. Gaines, John T. Moran, Jr., and David J. Sweet for respondent in both actions. In Krause v. American Guar. & Liab. Ins. Co.: Judges Burke, Scileppi, Bergan and Breitel concur with Judge Keating; Judge Jasen dissents and votes to reverse in an opinion in which Chief Judge Fuld concurs. In Seligson v. Fidelity & Cas. Co. of N. Y.: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur. Author: Keating


Krause v. American Guar. & Liab. Ins. Co., In Krause v. American Guar. & Liab. Ins. Co.: Judges Burke, Scileppi, Bergan and Breitel concur with Judge Keating; Judge Jasen dissents and votes to reverse in an opinion in which Chief Judge Fuld concurs. In Seligson v. Fidelity & Cas. Co. of N. Y.: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur.

Author: Keating

 These two actions, both having their origins in the great "salad oil swindle", are here by leave of the Appellate Division on a certified question and present a common issue of procedural law. The plaintiff in each case is a trustee in bankruptcy for one of the victims of the financial and other manipulations of one Anthony De Angelis, president of the Allied Crude Vegetable Oil Refining Corporation. It was the collapse of De Angelis and Allied in November, 1963 which precipitated the disaster engulfing D. R. Comenzo, Inc., and Ira Haupt & Co., two brokerage houses and the cestuis of the plaintiffs.

Both Comenzo and Haupt had held warehouse receipts representing commodities in storage on Allied's premises as security for credit extended by them. It is claimed the receipts were fraudulent, forged or counterfeit. Plaintiffs have brought separate actions seeking recovery on broker's bonds issued by the defendant insurance companies to recover the losses incurred. The insurers have not made any payments and, moreover, contest their liability under their respective bonds.

Both insurers subsequently impleaded American Express Company (Amexco). They allege that the losses were the fault of the field warehouse companies which were charged with the duty of supervision of Allied's tanks. They both allege that Amexco is also chargeable with the losses sustained because it so dominated and controlled its subsidiary, American Express Warehousing, Ltd., that the latter was the mere instrumentality of Amexco. The third-party complaints demand judgment over against Amexco if the plaintiffs recover against the defendant insurance companies.

In the Krause action, both the trustee and Amexco moved to dismiss the third-party complaint on the grounds that it failed to state a cause of action and that the insurer lacked legal capacity to sue (CPLR 3211, subd. [a], pars. 7, 3). Alternative relief in the form of a stay of all proceedings in the third-party action was also asked (CPLR 2201). Special Term granted the motions to dismiss, holding that the insurer's action was premature. It had no standing, the court held, to bring the third-party action because its rights were based on a claim by way of subrogation and those rights accrued only on payment to the insured. On appeal, the Appellate Division, by a closely divided court, reversed, reinstated the third-party complaint and denied the motion for a stay. The majority held that the interpleader statute (CPLR 1007) permits a third-party action based on subrogation even where no payment has been made. The dissenting Justices were of the view that our decision in Ross v. Pawtucket Mut. Ins. Co. (13 N.Y.2d 233) precluded a third-party action. "[Where] an insurer has not made any payments under a policy 'it has not acquired the right or color of a present cause of action' in subrogation" (27 A.D.2d 353, 357).

Since the Appellate Division held that dismissal of the third-party complaint was improper, the court found it necessary to reach the question of the request for a stay on the ground it would delay and prejudice the main action. The majority concluded that, while a general stay was unnecessary, the denial would be "without prejudice to an application to sever the third-party action in the event that the main action or any proceeding in it is sought to be delayed or adjourned by virtue of any proceeding in the third-party action or the incompleteness of any proceeding in that action" (supra, pp. 356-357).

In the Seligson action, only Amexco is the moving party. The same relief in the alternative as in Krause is sought. Two additional grounds for a stay were urged. First, a settlement between Haupt and Amexco was then in the offing under the terms of which Haupt would deliver a general release to Amexco. Second, pending the consummation of such settlement, Haupt had agreed not to prosecute an action it had brought in Supreme Court, New York County, against Amexco. It was alleged that the latter provision was binding on the insurer. Special Term denied the motion to dismiss, but granted a stay. Amexco appealed from the denial of the dismissal, while the insurer did not appeal the granting of the stay. On Amexco's appeal, the Appellate Division unanimously affirmed (28 A.D.2d 672), one Justice concurring on constraint of the Krause decision.

We conclude that the disposition made by the Appellate Division in each action was correct. Were we writing on a completely blank tablet, there would be absolutely no difficulty in holding, on the basis of statutory language, policy and fairness to the defendant, that the decisions below are sound.

The language of CPLR 1007 permits the defendant to implead any person "who is or may be liable to him" and is certainly broad enough to encompass contingent claims based on subrogation (Madison Ave. Props. Corp. v. Royal Ins. Co., 281 App. Div. 641; see Twelfth Annual Report of N. Y. Judicial Council, 1946, pp. 202-203; St. Paul Fire & Mar. Ins. Co. v. United States Lines Co., 258 F. 2d 374 [interpreting the same language in subdivision (a) of rule 14 of the Federal Rules of Civil Procedure]). Logically, there is no difference in terms of maturity of an action based on subrogation, as opposed to indemnity, because in either situation the cause of action only accrues upon payment or the determination of liability. Moreover, a subrogee has as strong an interest in protecting its claim over as does an indemnitor.

Nor can it be denied that to permit impleader is in full accord with the spirit of an advanced practice code which seeks "the avoidance of multiplicity and circuitry of action, and the determination of the primary liability as well as the ultimate liability in one proceeding, whenever convenient" (Eleventh Annual Report of N. Y. Judicial Council, 1945, p. 58; see, also, B.M.C. Mfg. Corp. v. Tarshis, 278 App. Div. 266).

It is, however, argued that to allow impleader would delay recovery by the insured, subject the alleged tort-feasor to multiple suits by all potential subrogees, involve the insured in a protracted and highly complex litigation in which it has no interest or concern, deprive the insured of control of its claim against the tort-feasor, impede a settlement between the insured and tort-feasor, create an incentive for the insurer to disclaim, and impose unnecessary litigation costs upon the plaintiff.*fn1 Most of the arguments are without merit, and almost all those which do militate against permitting impleader can be adequately answered by the liberal and effective use of various procedural devices provided for in the Civil Practice Law and Rules. Severances, separate trials and stays can be employed to avoid any possible prejudice, and the Appellate Division in the Krause action expressly indicated it would grant a stay if plaintiffs made a showing of prejudicial delay. (See, e.g., Lenzner Corp. v. Aetna Cas. & Sur. Co., 20 A.D.2d 305.) Likewise, any possible prejudice to the third-party defendant arising from multiple suits by subrogees can easily be cured by motions for consolidation or joint trials.

The argument that the insured is being involved in a case in which it has no interest or concern is difficult to understand. If such is indeed the plaintiff's position, the problem is easily resolved. The plaintiff need not participate in the preliminary phases of the litigation involving the third-party complaint and, when plaintiff's own case is ready for trial, it can then move for a separate trial of the issues raised by the complaint.

The assertion that the insured will be deprived of control of his claim against the alleged tort-feasor is of no merit as is the similar argument that it will delay settlements between the two. The insured is free to press on with its claim or, if no payment has been made by the insurer, settle, as the insured desires.*fn2 (Cf. Ocean Acc. & Guar. Corp. v. Hooker Electrochem. Co., 240 N. Y. 37.)

The contention that allowing impleader in this type of case creates an incentive for the insurer to disclaim is weakened by the fact that statutory interest is payable from the date of the loss. Moreover, where what is involved is a claim for several million dollars on a broker's bond involving serious liability questions, it cannot reasonably be suggested that impleader substantially increases the incentive on the part of the insurer to litigate its liability. Simple prudence would require ...


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