Crown Crane Rental Co., Inc. v. Eberhart Const. Co., Inc.

• Decision Date: 07 January 1983
• Citation: Crown Crane Rental Co., Inc. v. Eberhart Const. Co., Inc., 458 N.Y.S.2d 165, 117 Misc.2d 268 (N.Y. Sup. Ct. 1983)
• Court: New York Supreme Court
• Parties: CROWN CRANE RENTAL CO., INC., Plaintiff, v. EBERHART CONSTRUCTION CO., INC., Defendant & Third Party Plaintiff, v. RIVARA CONSTRUCTION CORP., Third Party Defendant. CROWN CRANE RENTAL CO., INC., Plaintiff, v. EBERHART CONSTRUCTION CO., INC., Defendant.

Page 165

458 N.Y.S.2d 165

117 Misc.2d 268

CROWN CRANE RENTAL CO., INC., Plaintiff, v. EBERHART CONSTRUCTION CO., INC., Defendant & Third Party Plaintiff, v. RIVARA CONSTRUCTION CORP., Third Party Defendant.

CROWN CRANE RENTAL CO., INC., Plaintiff, v. EBERHART CONSTRUCTION CO., INC., Defendant.

Supreme Court, Special Term Kings County, Part I.

Jan. 7, 1983.

Rosenthal & Goldhaber, Brooklyn, Greenhill, Speyer & Thurm, New York City, Richard A. Gash, New York City, of counsel, for plaintiff Crown Crane Rental Co., Inc.

Arnold I. Silberstein, New York City, for defendant and third party plaintiff Eberhart Construction Co., Inc.

Donald F. Ayers, New York City, for third party defendant Rivara Const. Corp.

MEMORANDUM

CHARLES H. COHEN, Justice.

Plaintiff claims it suffered certain damages when a crane it had leased to defendant was damaged on August 15, 1980.

Plaintiff brought an action in this court against defendant, under Index No. 19184/1981, to recover $29,625 for loss of rental value of that crane from August 15, 1980 to December 6, 1980. The defendant in that action brought a third party action against Rivara Construction Corp.

Plaintiff has brought a second action in this court against defendant, under Index No. 15867/1982, to recover $59,108 for actual damage to the crane.

Defendant now makes a motion for an order dismissing the complaint in the second action on the ground that there is another action pending between plaintiff and defendant "for the same cause of action" (see CPLR 3211(a)4).

Plaintiff, by its attorney in the second action, has made a cross motion to consolidate the two actions. Its attorney points out that St. Paul Insurance Company ("St. Paul") had insured plaintiff for damage to the crane and upon payment to plaintiff it became subrogated to the rights of plaintiff to recover for such damage, and brought the second action in the name of plaintiff to recover what it paid to plaintiff for damage to the crane. He further points out that St. Paul did not pay for loss based upon lost rental value and could not include such an item in its lawsuit, and that in the first action the plaintiff itself is suing to recover for any lost rental value.

Defendant contends that by bringing two actions, there is an improper splitting of a cause of action. Yet, while the claim set forth in each action arose out of the same incident, it must be emphasized that a different recovery is sought in each action by a different real party although by the same nominal party.

Upon St. Paul making payment for the actual damage to the crane under an existing insurance policy, it acquired a claim for such damage (see Rockaway Boulevard Wrecking v. Raylite Electric Corp., 25 A.D.2d 842, 270 N.Y.S.2d 1). Yet, the payment to plaintiff by St. Paul, its insurer, of that part of the loss did not divest the plaintiff of its claim for any lost rental value (Montana Power Company v. Janson, 29 A.D.2d 641, 287 N.Y.S.2d 631; Skinner v. Klein, 24 A.D.2d 433, 260 N.Y.S.2d 799). Thus, plaintiff retained a claim, which it was entitled to prosecute, in addition to the claim St. Paul received by right of subrogation and which, pursuant to CPLR 1004, could be brought in plaintiff's name (as well as in its own name (Motors Insurance Corp. v. American Garages, Inc., 94 Misc.2d 338, 404 N.Y.S.2d 803, affd. 98 Misc.2d 887, 414 N.Y.S.2d 841).)

The nominal plaintiff could not properly institute suit upon the claim which its insurer, St. Paul, had paid and had become the subrogee. Yet, the insurer could not properly institute suit, either in its own name or in the name of plaintiff, with respect to the claim it had not paid. Under these circumstances, where the action last instituted did not encompass any part of the claim being asserted in the first action but asserted only a subrogation claim as permitted by CPLR 1004 in which plaintiff was merely a nominal party, there was no improper splitting of a cause of action (Clarcq v. Chamberlain Mobile Home, 58...