Hanover Ins. Co. v. Finnerty
| Decision Date | 08 March 1996 |
| Citation | 639 N.Y.S.2d 433,225 A.D.2d 1054 |
| Parties | HANOVER INSURANCE COMPANY, as Subrogee of Philip L. Hottot, Appellant, v. Susan Marie FINNERTY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Appeal from Order of Supreme Court, Niagara County; Mintz, Judge--Dismiss Complaint.
Damon and Morey, LLP by Rodger Doyle, Jr., Buffalo, for appellant.
O'Shea, Reynolds & Cummings by Erin M. Peradotto, Niagara Falls, for respondent.
Before GREEN, J.P., and LAWTON, FALLON, DOERR and BALIO, JJ.
Supreme Court erred in dismissing this subrogation action upon the ground that, in executing a general release, plaintiff's insured failed to reserve plaintiff's subrogation rights against defendant. The unambiguous reservation of the insured's claim for underinsurance benefits from the insurer encompassed a reservation of the insurer's right to subrogation (see, Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N.Y. 399; Matter of State Farm Mut. Ins. Co. v. Trapanotto, 166 A.D.2d 537, 560 N.Y.S.2d 818). Moreover, defendant's post-answer motion to dismiss based upon the defenses of waiver, release and Statute of Limitations was untimely (see, CPLR 3211[e]; Burns v. Binghamton Hous. Auth., 36 A.D.2d 1004, 321 N.Y.S.2d 56).
The court properly denied plaintiff's cross motion to amend the complaint to assert a cause of action for implied indemnification. A motion to amend the complaint should be denied where, as here, the proposed amendment lacks merit (see, Goldstein v. Barco of Cal., 109 A.D.2d 817, 818, 486 N.Y.S.2d 688); plaintiff's remedy is subrogation, not indemnification (see, State Farm Mut. Auto. Ins. Co. v. Regional Tr. Serv., 79 A.D.2d 858, 859, 434 N.Y.S.2d 486). Thus, we modify the order on appeal by denying defendant's motion and reinstating the complaint.
Order unanimously modified on the law and as modified affirmed without costs.
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