Ehrlich v. American International Group

128 A.D.3d 587, 8 N.Y.S.3d 570

Opinion

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 19, 2014, dismissing the complaint with prejudice, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about November 14, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The motion court correctly found that the complaint fails to state a cause of action. Having received the full value of their claim under the insurance policy, plaintiffs are not entitled to any of the proceeds of the settlement of the insurer’s subrogation action against the third-party tortfeasor to recover their uninsured losses, i.e., their deductible and the loss due to depreciation (see Winkelmann v Excelsior Ins. Co., 85 NY2d 577 [1995]; see also Fasso v Doerr, 12 NY3d 80 [2009]). Plaintiffs failed to allege that they commenced an action directly against the tortfeasor and that the tortfeasor lacked the funds to compensate them for these uninsured losses. Concur — Mazzarelli, J.P., Acosta, Renwick, Manzanet-Daniels and Feinman, JJ.