Oprea v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Oprea v. New York City Housing Authority

239 A.D.2d 119, 657 N.Y.S.2d 552, 1997 N.Y. App. Div. LEXIS 4434

Appellate Division of the Supreme Court of the State of New York·Decided May 1, 1997·Published·Cited by 1 cases

Opinion

Order, Supreme Court, Bronx County (Anne Tar gum, J.), entered September 3, 1996, which, insofar as appealed from, dismissed the third-party complaint, unanimously modified, on [120] the law, to the extent of making such dismissal without prejudice to commencement of an action by defendant and third-party plaintiff against third-party defendant in the event plaintiff’s damages exceed $500,000, and otherwise affirmed, without costs.

Third-party plaintiff agrees that the anti-subrogation rule bars its third-party claim up to the amount of the insurance coverage purchased for it by third-party defendant, but argues against such a bar to the extent its exposure to plaintiff exceeds such coverage. However, any questions concerning the right to indemnification for a loss in excess, of the primary coverage are premature at this stage (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 473).

Motion denied insofar as it seeks a stay of trial and/or leave to appeal to the Court of Appeals; motion granted insofar as reargument / clarification is sought and thereupon this Court’s unpublished decision and order entered on April 1, 1997 (appeal No. 60431) is recalled and vacated and a new decision and order decided simultaneously. Concur—Milonas, J. P., Wallach, Nardelli and Tom, JJ.

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Order, Supreme Court, Bronx County (Anne Tar gum, J.), entered September 3, 1996, which, insofar as appealed from, dismissed the third-party complaint, unanimously modified, on [120] the law, to the extent of making such dismissal without prejudice to commencement of an action by defendant and third-party plaintiff against third-party defendant in the event plaintiff’s damages exceed $500,000, and otherwise affirmed, without costs.

Third-party plaintiff agrees that the anti-subrogation rule bars its third-party claim up to the amount of the insurance coverage purchased for it by third-party defendant, but argues against such a bar to the extent its exposure to plaintiff exceeds such coverage. However, any questions concerning the right to indemnification for a loss in excess, of the primary coverage are premature at this stage (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 473).

Motion denied insofar as it seeks a stay of trial and/or leave to appeal to the Court of Appeals; motion granted insofar as reargument / clarification is sought and thereupon this Court’s unpublished decision and order entered on April 1, 1997 (appeal No. 60431) is recalled and vacated and a new decision and order decided simultaneously. Concur—Milonas, J. P., Wallach, Nardelli and Tom, JJ.

Oprea v. New York City Housing Authority, 239 A.D.2d 119, 657 N.Y.S.2d 552, 1997 N.Y. App. Div. LEXIS 4434 (N.Y. Ct. App. 1997).

Pincite

239 A.D.2d 119 (Oprea v. New York City Housing Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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