Kelly v. Seager

163 A.D.2d 877, 558 N.Y.S.2d 403, 1990 N.Y. App. Div. LEXIS 9577

Opinion

Order unanimously affirmed with costs. Memorandum: The collateral source rule set forth in CPLR 4545 (c) does not apply to subrogation actions seeking to recover moneys paid by an insurer on a fire loss. The purpose of the statutory collateral source rule is to prevent multiple recoveries for the same loss by an injured party (see generally, 5 Weinstein-Korn-Miller, NY Civ Prac 4545.01). That purpose would not be served by its application to subrogation claims. Subrogation itself "exists to prevent double recovery by the insured and to force the wrongdoer to bear the ultimate costs” (Scinta v Kazmierczak, 59 AD2d 313, 316). Where, as here, the insurer has indemnified its insureds for their fire loss, the insurer is the real party in interest on the subrogation action (see, Siegel, NY Prac, § 137), and the pertinent issue, for purposes of CPLR 4545 (c), is whether the insurer stands to obtain a multiple recovery. Defendants do not contend that the insurer has, or will, receive moneys from a collateral source, and Supreme Court properly denied summary judgment. (Appeal from order of Supreme Court, Ontario County, Boehm, J.—summary judgment.) Present—Callahan, J. P., Denman, Green, Pine and Balio, JJ. [See, 144 Misc 2d 458.]