Mcelroye v. City of Rochester

190 A.D.2d 1025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment to third-party defendant dismissing the third-party complaint. Because Argonaut Insurance Company insured both third-party plaintiffs and third-party defendant, it was not entitled to subrogation so as to seek indemnification from third-party defendant. To permit Argonaut "to claim indemnification here would, directly or indirectly, place the insurer’s own interests at variance with those of its insured” (Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472). Such a conflict would exist whether the parties were insured by the same insurance company, under the same policy, as in Pennsylvania Gen. Ins. Co. v Austin Powder Co. (supra), or under separate policies, as here. Third-party plaintiffs failed to preserve for our review their argument that a question of fact exists whether the policy of insurance issued by Argonaut to third-party defendant was in effect at the time of the accident. (Appeal from Order of Supreme Court, Monroe County, Cornelius, J. — Summary Judgment.) Present— Boomer, J. P., Pine, Lawton, Boehm and Fallon, JJ.