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Geico General Insurance Company As Subrogee of Dean S. Gangai v. Town of Oyster Bay and Henry C. Gundermann

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


March 1, 2013

GEICO GENERAL INSURANCE COMPANY AS SUBROGEE OF DEAN S. GANGAI,
RESPONDENT,
v.
TOWN OF OYSTER BAY AND HENRY C. GUNDERMANN,
APPELLANTS.

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated January 5, 2012.

Geico Gen. Ins. Co. v Town of Oyster Bay

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2013

PRESENT: NICOLAI, P.J., and IANNACCI, J.

The order denied defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by adding a provision thereto amending the caption to reflect that Betty Cullinan is an additional subrogor; as so modified, the order is affirmed, without costs.

In this subrogation action to recover sums plaintiff insurer Geico General Insurance Company (Geico) had paid for damage caused by an accident to a motor vehicle insured by Geico, defendants moved for summary judgment dismissing the complaint on the ground that the subrogor named in the caption, Dean S. Gangai, is not the owner of the vehicle in question. In opposition to the motion, Geico submitted proof, among other things, that both Gangai (who was involved in the accident in question) and the owner of the vehicle, Betty Cullinan (his fiance), were named on the relevant insurance policy. The District Court denied defendants' motion.

The principle of subrogation is to be liberally applied for the protection of its natural beneficiaries, such as insurance companies (see e.g. Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 373 [1990]; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 47 [1925]; 23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 164). While Geico may have only listed on the caption, as the subrogor, an insured party who does not own the vehicle in question, the failure to name a correct subrogor "is not fatal" to a subrogee's claim (Continental Ins. Co. v Marx Co., 220 AD2d 343, 344 [1995]). It is the subrogee who is the real party in interest, and its claims arise upon payment of the loss (Continental Ins. Co., 220 AD2d at 344; see also Winkelmann, 85 NY2d at 582; Federal Ins. Co., 75 NY2d at 372; Ocean Acc. & Guar. Corp., 240 NY at 47; Lord & Taylor, Inc. v Yale & Towne Mfg. Co., 230 NY 132, 141 [1920]; 23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 172). There is no indication that defendants in this case were confused about what accident was at issue or about who was involved in that accident. Consequently, pursuant to the courts' power to correct errors, provided that a substantial right of a party is not prejudiced (CPLR 2001; see Albilia v Hillcrest Gen. Hosp., 124 AD2d 499, 500 [1986]), we modify the order to provide that the caption is amended to include Betty Cullinan as a subrogor, as this does not amount to a change in the claim or a change of parties, nor does it prejudice defendants (see Continental Ins. Co., 220 AD2d at 344).

Nicolai, P.J., and Iannacci, J., concur. Decision Date: March 01, 2013

20130301

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