| Ehrlich v American Intl. Group |
| 2015 NY Slip Op 04411 |
| Decided on May 26, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 26, 2015
Mazzarelli, J.P., Acosta, Renwick, Manzanet-Daniels, Feinman, JJ.
15210 652672/12 15209
v
American International Group, et al., Defendants-Respondents.
Ambrecht & Maloney, PLLC, New York (Brian G. Maloney of counsel), for appellants.
Robinson & Cole LLP, New York (Stephen E. Goldman of counsel), for American International Group and New Hampshire Insurance Co., respondents.
Budd Larner, P.C., New York (Joseph J. Schiavone of counsel), for Everest Reinsurance Company, respondent.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 19, 2014, dismissing the complaint with prejudice, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about November 14, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The motion court correctly found that the complaint fails to state a cause of action. Having received the full value of their claim under the insurance policy, plaintiffs are not entitled to any of the proceeds of the settlement of the insurer's subrogation action against the third-party tortfeasor to recover their uninsured losses, i.e. their deductible and the loss due to depreciation (see Winkelmann v Excelsior Ins. Co., 85 NY2d 577 [1995]; see also Fasso v Doerr, 12 NY3d 80 [2009]). Plaintiffs failed to allege that they commenced an action directly against the tortfeasor and that the tortfeasor lacked the funds to compensate them for these uninsured losses.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 26, 2015
CLERK