Opinion
April 4, 1995
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Gemstones that plaintiff had consigned to defendant insured were stolen while in the insured's possession. The insured submitted a claim of loss to defendant insurer, which promptly paid and obtained a release from the insured. After receiving partial payment from the insured, plaintiff brought this action against both the insured and the insurer for the remaining amount. Although bailors have been allowed to sue their bailee's insurer on the theory that an owner of property can take the place of the insured in an action brought under the policy (see, Stainless, Inc. v Employers Fire Ins. Co., 69 A.D.2d 27, 35, affd 49 N.Y.2d 924, citing Exton Co. v Home Fire Mar. Ins. Co., 249 N.Y. 258, 261), such is not the case here, plaintiff having elected to sue the bailee, who had included plaintiff's damages in its proof of loss, and the insurer having settled the claim in good faith (Hoffman v Fireman's Fund Indem. Co., 160 Misc. 823, affd 248 App. Div. 866).
Concur — Murphy, P.J., Sullivan, Ellerin, Williams and Mazzarelli, JJ.