Employers' Fire Insurance Company v. Brookner

• Decision Date: 22 January 2008
• Docket Number: 2007-02514.
• Citation: 850 N.Y.S.2d 554,47 A.D.3d 754,2008 NY Slip Op 00448
• Parties: EMPLOYERS' FIRE INSURANCE COMPANY, Respondent, v. ANDREW BROOKNER, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

47 A.D.3d 754

850 N.Y.S.2d 554

2008 NY Slip Op 00448

EMPLOYERS' FIRE INSURANCE COMPANY, Respondent, v. ANDREW BROOKNER, Appellant, et al., Defendants.

2007-02514.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided January 22, 2008.

In a subrogation action, inter alia, to recover amounts paid by the plaintiff to its insureds for property damage, the defendant Andrew Brookner appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 5,

2007, as denied that branch of his motion which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (1) and (5).

Ordered that the order is affirmed insofar as appealed from, with costs.

The medical office of the defendant Andrew Brookner was located on the third floor of a building owned by the plaintiff's subrogor RAIA Realty Corp. (hereinafter RAIA). The other medical offices in the building sustained heavy water damage when a water hose on Brookner's surgical laser machine burst. The plaintiff insurance carrier paid the claims of its insureds, RAIA, A.E.M. Optical, Inc., doing business as Kings Highway Vision Center (the tenant of the first floor of the building; hereinafter AEM), and the principals of those two corporations, arising from the water damage.

Alexandra Etkin, the occupant of the second floor of the building, together with her husband Edward Etkin commenced an action (hereinafter the Etkin action) against Brookner, RAIA, and RAIA's principal, Akiva Mitzmacher, alleging property damage and personal injuries resulting from the water leak. The latter two defendants asserted a cross claim against Brookner, seeking indemnification or contribution. The parties subsequently reached a settlement agreement, under which Brookner was to pay the Etkins the sum of $30,000. Neither RAIA nor Mitzmacher was required to make any payment to the Etkins, and neither RAIA nor Mitzmacher recovered any money from Brookner. The parties to the Etkin action entered into a stipulation discontinuing the action, which specified that the discontinuance was "with prejudice."

The plaintiff subsequently commenced this subrogation action against Brookner and others, seeking to recover the amounts it had paid to its insureds as a result of the water damage allegedly caused by, inter alia, Brookner's negligence. Brookner moved to dismiss the complaint and all cross claims insofar as asserted against him, arguing that the instant action was barred by res judicata, based on the stipulation of discontinuance in the Etkin action, which arose from the same occurrence. In the order appealed from, the Supreme Court denied Brookner's motion. We affirm the order insofar as appealed from.

A plaintiff suing as a subrogee "`is subject to whatever rules of estoppel would apply to the insured'" (State Farm Mut. Auto. Ins. Co. v Polge, 258 AD2d 911, 911 [1999], quoting D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665 [1990]). Thus, if RAIA and Mitzmacher would be barred by the doctrine of res judicata from commencing an action against Brookner to recover for the property damage caused by his alleged negligence, then the plaintiff's subrogation action—at least to the extent that it seeks to recover amounts paid to RAIA and Mitzmacher—would likewise be barred.

A final judgment "bars future actions between the same parties on the same cause of action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). This doctrine of res judicata only bars ...