Interested Underwriters at Lloyds v. Ducor's, Inc.

Silverman, J. (dissenting).

We would affirm the judgment appealed from.

Waiver of subrogation rights by the insured is valid, at least if nothing in the insurance policy forbids it. (See Brentano’s, Inc. v Charter Mgt. Corp., 46 AD2d 861; Board of Educ. v Valden Assoc., 46 NY2d 653.)

The waiver of the subrogation clause here involved is not expressly limited to fire or other casualty originating in the same building, nor does it expressly exclude fire or casualty originating in adjacent property. Nor do we see that such exclusion would be consistent with the reasonable expectations of the parties, or the business sense of their arrangements.

As a business arrangement, the parties agreed that each of them would get its own insurance for damage to its property, and that each would “look first” to its own insurance to recover for such damage, and if the insurance did make it whole, it would not sue the other party “by way of subrogation or otherwise”.

There is no reason why the parties should have limited this protection against subrogation suits to casualties originating in the same building. What the parties wanted was protection against subrogation suits where the insurance covered the loss, and there was no reason why they should not want that protection because the calamity originated elsewhere. The parties should not be deprived of the protection and repose they wanted by subtle legal interpretation to narrow that antisubrogation protection that each was contracting for, or to extend the insurance company’s subrogation effort to shift to someone else the loss the insurance company had contracted to take care of.

Even in conceptual legal terms, it is difficult for us to see why subrogation should be permitted here. The tenant leases only the space he leases. The rest of the landlord’s property is the landlord’s. What possible difference can it make to the tenant how extensive the property owned by the landlord is that is not leased to the tenant? It cannot *81matter to the tenant whether the landlord owns the whole building, or the whole block, or is only himself a lessee of a portion of the building. Suppose, for example, a landlord owns a piece of property on part of which a building stands and part of which is “vacant — no building occupies every square inch of the lot or lots on which it stands — would the antisubrogation clause not apply because the fire originated in the “vacant” area and not in the building structure? Surely, it cannot matter that the area on which the building stands is held by the landlord under one deed and the “vacant” area under another, or that a lot line runs through the landlord’s property, with the tenant leasing a portion of the space on one side of the lot line and the fire originating somewhere on the other side.

The foregoing analysis is not affected by the fact that the antisubrogation clause refers to the parties as “landlord” and “tenant”. That is merely a common drafting device, particularly in form of contracts, to avoid having to repeat at each point the names of the parties. And in a lease agreement, it is easier to say “landlord” and “tenant” than “party of the first part” or “party of the second part”. But the lease agreement makes clear at its very beginning who is meant by “landlord”. It says “meyer ducorsky, residing at 42 Columbia Avenue, Cedarhurst, New York, party of the first part, hereinafter referred to as landlord”. It does not say “meyer ducorsky, in his capacity as Landlord.” So “landlord” means “meyer ducorsky, residing at [etc.]”. And it is Meyer Ducorsky residing at etc., who claims the protection that the antisubrogation clause extends to him, “landlord”.

Carro and Milonas, JJ., concur with Sullivan, J.; Sandler, J. P., and Silverman, J., dissent in an opinion by Silverman, J.

Judgment, Supreme Court, New York County, entered on January 3, 1984, reversed, on the law, the judgment vacated, and the motion pursuant to CPLR 3211 to dismiss the complaint denied. Appellant shall recover of respondents $75 costs and disbursements of this appeal.