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Payson v. 50 Sutton Place South Owners, Inc.

Supreme Court of New York, First Department

June 13, 2013

Joanne Payson, Plaintiff-Appellant
v.
50 Sutton Place South Owners, Inc., et al., Defendants-Respondents.

Wachtel Masyr & Missry LLP, New York (John H. Reichman of counsel), for appellant.

Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for respondents.

Acosta, J.P., Saxe, Renwick, Richter, Clark, JJ.

Amended order, Supreme Court, New York County (Cynthia S. Kern, J.), entered December 20, 2012, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the assigned subrogated claim, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 3, 2012, unanimously dismissed, without costs, as superseded by the appeal from the order entered December 20, 2012. Order, same court and Justice, entered December 14, 2012, which, to the extent appealable, denied plaintiff's motion for renewal, unanimously affirmed, without costs.

The motion court's understanding of the unambiguous waiver of subrogation clause comported with the rule strictly construing such waivers (see State Farm Ins. Co. v J.P. Spano Constr., Inc., 55 A.D.3d 824 [2nd Dept 2008]). The court correctly interpreted plaintiff's insurance policy (see Federal Ins. Co. v International Bus. Machs. Corp., 18 N.Y.3d 642, 646 [2012]) by applying the clause to the claims of damage to plaintiff's cooperative apartment, despite the clause's reference to "condominiums." The policy, under which the insurer had paid plaintiff nearly $1.5 million, refers to plaintiff's premises as a condominium and states that the coverage is for condominiums, and the clause's reference to "corporation" can only refer to a cooperative corporation. As the assignee of the subrogated claims, plaintiff is in no better position than her assignor (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 N.Y.3d 586, 592 [2011]).

The court properly considered defendants' reply quoting the clause, since plaintiff availed herself of the opportunity to respond to the submission (see Riley v Segan, Nemerov & Singer, P.C., 82 A.D.3d 572 [1st Dept 2011]). The lack of ambiguity in the clause rendered inadmissible plaintiff's averment in support of her renewal motion. In view of the foregoing, it is unnecessary to address the additional ground urged for affirmance.

We have considered plaintiff's remaining contentions and find them unavailing.


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