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Hudson Insurance Co v. Ak Construction Co.

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 14, 2012

HUDSON INSURANCE CO.,
PLAINTIFF-RESPONDENT,
v.
AK CONSTRUCTION CO., LLC, DEFENDANT-APPELLANT,
PANASIA ESTATES, INC., ET AL.,
DEFENDANTS.

Hudson Ins. Co. v AK Constr. Co., LLC

Decided on February 14, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Catterson, Richter, Abdus-Salaam, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 19, 2010, which, to the extent appealed from as limited by the briefs, denied defendant AK Construction Co. LLC's motion to dismiss the complaint as against it, unanimously affirmed, with costs.

Contrary to defendant's contention, there is no rule that a subrogation claim can be brought only by impleader under CPLR 1007 (see e.g. Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172 [2004]). The claim may be brought either as an impleader or by separate plenary action. Indeed, the language of CPLR 1007 is permissive, rather than mandatory, and nowhere suggests that an impleader action is the only vehicle available to an insurer so situated (see Krause v American Guar. & Liab. Ins. Co., 22 NY2d 147, 152-153 [1968]).

Plaintiff was not bound to wait until its liability was established in the underlying coverage action to bring this lawsuit (see Allianz, 13 AD3d at 175). This is true even though this is an action for declaratory relief and not "third-party practice" under CPLR 1007.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK

20120214

© 1992-2012 VersusLaw Inc.



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