| Navigators Ins. Co. v Ironshore Indem., Inc. |
| 2017 NY Slip Op 08486 |
| Decided on December 5, 2017 |
| 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 December 5, 2017
Richter, J.P., Manzanet-Daniels, Andrias, Kahn, Singh, JJ.
161419/14 5136 5135
v
Ironshore Indemnity, Inc., et al., Defendants-Appellants.
Vogrin & Frimet, LLP, New York (George J. Vogrin of counsel), for Ironshore Indemnity, Inc., appellant.
Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for Transel Elevator & Electric, Inc., sued herein as Transel Elevator, Inc., appellants.
Kelly & Curtis, PLLC, New York (Mark S. Moroknek of counsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.),
entered October 26, 2015, which denied defendants' motions to dismiss the complaint as against them, and granted plaintiff's cross motion for summary judgment declaring that defendants must reimburse it for indemnity and defense costs it incurred in the underlying personal injury action, unanimously reversed, on the law, with costs, the motions granted, and the cross motion denied. Appeal from order, same court and Justice, entered April 25, 2017, upon reargument and renewal of the foregoing motions, unanimously dismissed, without costs, as academic. The Clerk is directed to enter judgment dismissing the complaint.
Plaintiff seeks reimbursement of defense and settlement payments it made on behalf of its insureds in the underlying action. As subrogee of its insureds, plaintiff has only the rights that its insureds have (Daimler Chrysler Ins. Co. v New York Cent. Mut. Fire Ins. Co., 125 AD3d 518 [1st Dept 2015]). The insureds stipulated to the discontinuance with prejudice of their defense and indemnification claims in the underlying action. Thus, plaintiff's subrogation claim is barred by the doctrine of res judicata (Schwartzreich v E.P.C. Carting Co., 246 AD2d 439 [1st Dept 1998]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 5, 2017
CLERK