Opinion
2012-02-14
HUDSON INSURANCE CO., Plaintiff–Respondent, v. AK CONSTRUCTION CO., LLC, Defendant–Appellant,Panasia Estates, Inc., et al., Defendants.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York (Robert M. Milner of counsel), for appellant. White Fleischner & Fino, LLP, New York (Gil M. Coogler of counsel), for respondent.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York (Robert M. Milner of counsel), for appellant. White Fleischner & Fino, LLP, New York (Gil M. Coogler of counsel), for respondent.
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 A.D.3d 172, 787 N.Y.S.2d 15 [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 N.Y.2d 147, 152–153, 292 N.Y.S.2d 67, 239 N.E.2d 175 [1968] ).
Plaintiff was not bound to wait until its liability was established in the underlying coverage action to bring this lawsuit ( see Allianz, 13 A.D.3d at 175, 787 N.Y.S.2d 15). This is true even though this is an action for declaratory relief and not “third-party practice” under CPLR 1007.