Opinion
1624
September 24, 2002.
Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 7, 2001, which, inter alia, granted the motion of plaintiff-respondent Public Service Mutual Insurance Company for partial summary judgment as against plaintiff-appellant Allcity Insurance Company entitling plaintiff-respondent to the entire proceeds of the judgment recovered by plaintiffs from defendant Travelers Aetna Casualty Surety Co., unanimously affirmed, without costs.
STUART M. HERZ, for plaintiff-respondent.
STEVEN VERVENIOTIS, for plaintiff-appellant.
Before: Williams, P.J., Tom, Rosenberger, Gonzalez, JJ.
The court properly granted plaintiff-respondent Public Service Mutual Insurance Company's motion for partial summary judgment as against plaintiff-defendant Allcity Insurance Company. In this subrogation action, the funds recovered by plaintiffs from defendant Travelers Aetna Casualty Surety were substantially less than the combined amounts to which plaintiffs, as subrogees, were entitled, and indeed less than the amount to which plaintiff Public Service Mutual alone was entitled. Plaintiff Public Service Mutual sufficiently established its superior right to the funds through submission of a copy of its policy along with the attestation of its Assistant Secretary and Manager that the submitted copy was a true and complete copy of its policy, the plain language of which provides that Public Service's policy is in excess to the primary insurance policy (that of Allcity) and that, with respect to subrogation, any money recovered must be paid to Public Service before payment of recovered funds is made to the primary carrier (see Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d 651).
We have considered plaintiff-appellant's remaining contention and find it unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.