Opinion
December 3, 1970
Appeal from an order of the Court of Claims, entered November 28, 1969, which (1) granted respondent's motion (a) to dismiss the claim unless claimant and/or the operator of his vehicle appear at an examination before trial on December 30, 1969 and (b) to stay the trial pending such action, and (2) denied claimant's cross motion to substitute the Aetna Casualty Surety Company as the named claimant and the real party in interest. The claim alleges that on September 1, 1967 at about 2:00 A.M. claimant's unoccupied automobile which had been loaned to one Catalano was parked in the vicinity of Northern Boulevard and the Town House Motel in the City of Albany, and was negligently struck by a State-owned vehicle. Thereafter claimant's insurer, Aetna Casualty and Surety Company, paid claimant most, but not all, of his claim for damages and became subrogated to claimant's right to recover on November 10, 1967. Aetna filed a claim for property damages against the State in claimant's name, as it had the right to do under the subrogation agreement. After claimant served a bill of particulars, the State found that an examination before trial of claimant and/or the driver was necessary. Aetna agreed to produce the driver. The examination before trial was adjourned on several occasions, and on November 3, 1969, the State moved to dismiss the claim unless claimant produced the owner and/or driver to give testimony. Claimant opposed the motion and cross-moved to substitute Aetna in place of claimant. Special Term granted the State's motion and denied claimant's cross motion. Claimant's sole contention on this appeal is that Special Term erred in denying the request for substitution. With this contention we do not agree. While it is true that after payment of a loss, the insurer is entitled to be substituted pro tanto to any claim the insured may have against a wrongdoer ( Galante v. Hathaway Bakeries, 6 A.D.2d 142, 149), where the insurer has paid the insured a part only of his claim, the insured continues as the real party in interest and is also entitled to pursue an action against the wrongdoer ( Skinner v. Klein, 24 A.D.2d 433). In the instant case it must be kept in mind that Aetna elected to bring the action in the name of the claimant who still has a monetary interest in the claim. If Aetna is allowed to be substituted in place of claimant, claimant's interest in the claim would still remain. This would result in the splitting of a cause of action. (See Pearl Assur. Co., v. Epstein, 295 N.Y. 674; 3 Carmody-Wait 2d, New York Practice, §§ 16:1, 16:2.) Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.