Opinion
15379 Index No. 161070/17 Case No. 2021–03512
02-24-2022
ASPEN AMERICAN INSURANCE as subrogee of 2900 Ocean Condominium, Plaintiff-Respondent, v. Philip NEWMAN et al., Defendants–Appellants.
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for appellants. Rosner Nocera & Ragone, LLP, New York (Eliot L. Greenberg of counsel), for respondent.
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for appellants.
Rosner Nocera & Ragone, LLP, New York (Eliot L. Greenberg of counsel), for respondent.
Webber, J.P., Kern, Moulton, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered August 16, 2021, which denied defendants' motion to dismiss the complaint or, alternatively, for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment dismissing the complaint.
After a fire broke out in the condominium unit owned by defendants, causing damage to the building, plaintiff, the condominium building's insurer, commenced this subrogation action to recover for amounts it had paid to the condominium to reimburse it for its loss, plus interest. Plaintiff is precluded from maintaining this subrogation action. Parties to an agreement may waive their insurer's right of subrogation (see Kaf–Kaf, Inc. v. Rodless Decorations, Inc., 90 N.Y.2d 654, 660, 665 N.Y.S.2d 47, 687 N.E.2d 1330 [1997] ), since the insurer's rights against a third party are derivative and limited to the rights the insured would have against that third party ( Nationwide Mut. Ins. Co. v. U.S. Underwriters Ins. Co., 151 A.D.3d 504, 505, 59 N.Y.S.3d 1 [1st Dept. 2017] ). Here, the condominium bylaws required the condominium to obtain a policy containing a waiver of subrogation to the extent such a policy was obtainable. Thus, because the policy issued by plaintiff allowed the condominium to waive subrogation, the bylaws required it to do so.