McHale v. Anthony

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about October 26, 2005, which granted plaintiffs’ motion for leave to amend the summons and complaint to add a subrogation cause of action on behalf of Liberty Mutual Insurance Company, affirmed, without costs.

It is undisputed that plaintiff Robert McHale was seriously injured on July 12, 1999 when the vehicle he was driving, which was owned by United Refrigeration, collided with a truck driven by defendant-appellant Anthony, rented by defendant-appellant Empire Beef and owned by defendant Ryder Truck Rental, Inc. This personal injury action was timely commenced two years later; however, because Ryder declared bankruptcy, and its insurer, Frontier Insurance Group, as well as the insurer for defendants-appellants Anthony and Empire Beef, Reliance Insurance Company, went into receivership, the action was stayed from 2001 until October 2004. As a result, plaintiffs, without notice to defendants, filed a claim with United Refrigeration’s uninsured motorist carrier, Liberty Mutual, that resulted, on May 10, 2004, in a settlement agreement that contained a right of subrogation.

As is relevant to this appeal, on or about June 6, 2005, plaintiffs moved pursuant to CPLR 3025 (b) to amend the complaint to add a subrogation cause of action on behalf of Liberty Mutual. Defendants-appellants Anthony and Empire Beef opposed on the ground that Liberty Mutual’s subrogation claim was barred by the statute of limitations inasmuch as it accrued on the date of the accident, not the date of payment or of the subrogation agreement. Defendant Ryder also opposed on statute of limitations grounds, arguing that the subrogation claim did not relate back to the original complaint pursuant to CPLR 203 (f) because the original complaint did not give any notice of the possibility of an arbitration between plaintiffs and Liberty Mutual that could result in a large settlement without Ryder’s participation. Ryder also argued that plaintiffs’ motion must be denied because counsel for Liberty Mutual, who failed to enter an appearance on behalf of plaintiffs as directed by the court, did not have standing to move on behalf of plaintiffs. Subsequent replies and a letter by plaintiffs and a surreply by Anthony and Empire Beef, while addressing the relation-back issue and raising a new argument that Liberty Mutual, although referred to in the proposed amended complaint as a “subrogee,” was in essence an “assignee,” made no reference to Ryder’s lack of standing claim. Nor did the court, which found that defendants’ arguments were unavailing and granted plaintiffs’ motion.

Accordingly, limiting our review to the issues raised in appellants’ briefs, it is evident that Liberty’s claim for part of whatever plaintiffs might recover “arises out of the same occurrence that gave rise to plaintiffs’ claim . . . and is similar enough to plaintiffs’ claim that defendant was thereby placed on notice of [the insurer]’s claim” (Omiatek v Marine Midland Bank, N.A., 9 AD3d 831, 831-832 [2004], appeal dismissed 3 NY3d 738 [2004]; see also Kaczmarski v Suddaby, 9 AD3d 847, 848 [2004], appeal dismissed 3 NY3d 738 [2004]). Hence, the relation-back provision of CPLR 203 (f) applies, and Liberty Mutual’s subrogation cause of action is not time-barred.

The concerns expressed by the dissent have no relevance to the issues presented by the parties to this appeal. Defendants Anthony and Empire Beef, as limited by their briefs, have appealed only on the grounds that the relation-back provision of CPLR 203 (f) does not apply and the proposed new cause of action is one for subrogation and not assignment. Ryder, the only party who raised the standing issue before the motion court, has not appealed and therefore must be deemed to have abandoned such issue. Nevertheless, the dissent would reverse and deny plaintiffs’ motion solely on the ground of counsel’s lack of standing, an issue not raised by the appealing parties and not addressed in their brief.

It is well settled that an appellate court’s scope of review is generally limited to those issues that have been appealed and that aggrieve the appealing party (Hecht v City of New York, 60 NY2d 57, 61 [1983]), and that arguments raised below but not pursued on appeal are generally deemed abandoned (see Batas v Prudential Ins. Co. of Am., 37 AD3d 320, 321 n 1 [2007]). Thus, any arguments pertaining to standing are not properly before us and should not be considered (see Matter of Kent v Kent, 29 AD3d 123, 130 [2006]). To do so would be so unfair to the parties, who have presented what they think are the determinative issues for this Court to decide only to be blindsided by a decision based on issues not even raised or addressed in their briefs, as to implicate due process concerns. Concur—Andrias, J.P., Saxe and Williams, JJ.