Opinion
May 23, 1994
Appeal from the Supreme Court, Westchester County (Fredman, J.).
Ordered that the order is affirmed, with costs.
This appeal concerns a companion case Winkelmann v. Hockins ( 204 A.D.2d 623 [decided herewith]).
The plaintiff policyholders sued their insurance carrier, the defendant Excelsior Insurance Company (hereinafter Excelsior), for damages based on the claim that Excelsior, after settling with the plaintiffs, settled its subrogation claim with the alleged tortfeasors' insurance carrier, the Colonial Indemnity Insurance Company, to the plaintiffs' detriment and before the plaintiffs were made whole for losses that they had suffered beyond the amount received from Excelsior.
As a general rule, an insurance carrier that has paid part of a loss to a policyholder may proceed pro tanto against a third-party whose negligence or wrongful act allegedly caused the loss (see, Federal Ins. Co. v. Andersen Co., 75 N.Y.2d 366; Faraino v. Centennial Ins. Co., 103 A.D.2d 790). This rule applies here. Thus, since Excelsior had the right to settle its own subrogation claim, the Supreme Court properly granted Excelsior summary judgment and dismissed the complaint.
We note that, if the prejudice alleged by the plaintiffs does arise, it may be addressed at that time by an appropriate action (see, 44 Am Jur 2d, Insurance, § 1820). Rosenblatt, J.P., Ritter, Pizzuto and Altman, JJ., concur.