Hudson Insurance Co. v. AK Construction Co.

92 A.D.3d 521, 938 N.Y.2d 430

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2012
• Status: Published

Opinion

Contrary to defendant’s contention, there is no rule that a subrogation claim can be brought only by impleader under CPLR 1007 (see e.g. Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172 [2004]). The claim maybe brought either as an impleader or by separate plenary action. Indeed, the language of CPLR 1007 is permissive, rather than mandatory, and nowhere suggests that an impleader action is the only vehicle available to an insurer so situated (see Krause v American Guar. & Liab. Ins. Co., 22 NY2d 147, 152-153 [1968]).

Plaintiff was not bound to wait until its liability was established in the underlying coverage action to bring this lawsuit (see Allianz, 13 AD3d at 175). This is true even though this is an action for declaratory relief and not “third-party practice” under CPLR 1007. Concur — Tom, J.P., Andrias, Catterson, Richter and Abdus-Salaam, JJ. [Prior Case History: 2010 NY Slip Op 31909(U).]