Agway Insurance Companies v. Williamson

162 A.D.2d 968, 557 N.Y.S.2d 193, 1990 N.Y. App. Div. LEXIS 9707

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1990
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Peter and Cheryl Kaszynski suffered a fire loss on their farm. Their insurer, Agway Insurance Companies (Agway), voluntarily paid them $42,000 in extra coverage they had requested but did not receive because of the alleged failure of one or more of the defendant brokers to secure it. Agway made the payment on the condition that the Kaszynskis assign to Agway their right of recovery against defendants for breach of contract and negligence.

Supreme Court properly granted the motion of defendant Knight Agency, Inc. to substitute Agway as a party plaintiff. Since Agway has completely reimbursed the Kaszynskis for their loss, Agway is the real party in interest in this lawsuit (see, 71 NY Jur 2d, Insurance, § 1922). CPLR 1004 is no bar to Agway being substituted as the named plaintiff.

Supreme Court also properly denied defendants’ motion for summary judgment, which requested a limitation on damages to the amount of premiums the Kaszynskis would have paid for the additional coverage. Since Agway voluntarily paid the excess coverage, its interest is not so limited, as a matter of law, and it may seek recovery for the full amount it paid (see, Travelers Ins. Co. v Brass Goods Mfg. Co., 239 NY 273; cf., Home Mut. Ins. Co. v Broadway Bank & Trust Co., 100 Misc 2d 228, 234-236, affd 76 AD2d 24, 28-29, affd 53 NY2d 568, 578-579). Defendants’ remaining claims lack merit. (Appeal from order of Supreme Court, Monroe County, Patlow, J.— summary judgment.) Present—Callahan, J. P., Doerr, Boomer, Green and Balio, JJ.