Point Tennis Co. v. Irvin Industries Corp.

Decision Date05 June 1978
Citation405 N.Y.S.2d 506,63 A.D.2d 967
PartiesPOINT TENNIS COMPANY, Appellant, v. IRVIN INDUSTRIES CORP., Respondent, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Gwertzman & Pfeffer, New York City (Milton B. Pfeffer, New York City, and Ellen Lefkowitz, New York City, of counsel), for appellant.

Burns, Jackson, Miller, Summit & Jacoby, New York City (John L. Amabile, New York City, of counsel), for respondent.

Before GULOTTA, J. P., and SHAPIRO, COHALAN and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In an action to recover for property damage, plaintiff appeals from an order of the Supreme Court, Nassau County, entered December 15, 1977, which granted the motion of defendant Irvin Industries Corp. for summary judgment.

Order reversed, with $50 costs and disbursements, and motion denied.

CPLR 1004 authorizes suit in the name of an injured person who has executed a "loan receipt" in favor of his insurer. Plaintiff concededly executed a loan receipt in exchange for payment of his claim. Accordingly, defendant-respondent's objection that the plaintiff, having received payment and divested himself of a financial interest in the lawsuit, has no standing to pursue this action, is without merit (see Rosenthal Jewelry v. St. Paul Fire Ins., 21 A.D.2d 160, 164, 249 N.Y.S.2d 208, 212, affd., 17 N.Y.2d 857, 271 N.Y.S.2d 287, 218 N.E.2d 327). This statute constitutes a legislative exception to the "real party in interest" doctrine and laudably prevents the disclosure of insurance coverage by plaintiff.

The loan receipt executed by plaintiff, having vested all right and interest in any recovery to its insurer, concededly renders this action a subrogation claim. Accordingly, the release executed by plaintiff in favor of defendant, which contained an express exception for a subrogation claim may not be utilized to bar this action.

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2 cases
  • Federal Ins. Co. v. Arthur Andersen & Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • February 22, 1990
    ...subrogee were clearly preserved (see, Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N.Y. 399, 404-405; Point Tennis Co. v. Irvin Indus. Corp., 63 A.D.2d 967, 405 N.Y.S.2d 506; see also, Weinberg v. Transamerica Ins. Co., 62 N.Y.2d 379, 383-384, 477 N.Y.S.2d 99, 465 N.E.2d 819). We turn to a......
  • CNA Ins. Co. v. Carl R. Cacioppo Elec. Contractors, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 1994
    ...for losses which often results when it is disclosed to the jury that the loss was covered by insurance (see, Point Tennis Co. v. Irvin Inds. Corp., 63 A.D.2d 967, 405 N.Y.S.2d 506; see, also, Krieger v. Insurance Co. of North Amer., 66 A.D.2d 1025, 411 N.Y.S.2d 730). Moreover, in the past t......

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