Skinner v. Klein

Appellate Division of the Supreme Court of New York

Skinner v. Klein

24 A.D.2d 433, 260 N.Y.S.2d 799, 1965 N.Y. App. Div. LEXIS 3865

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 22, 1965

StatusPublished

Cited by4 cases

This text of 24 A.D.2d 433 (Skinner v. Klein) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Skinner v. Klein, 24 A.D.2d 433, 260 N.Y.S.2d 799, 1965 N.Y. App. Div. LEXIS 3865 (N.Y. Ct. App. 1965).

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Opinion

Order entered December 18, 1964, denying motion by plaintiff to dismiss the [434]*434first and second affirmative defenses contained in answer of defendants Klein and Marklein Realty Corporation, unanimously reversed, on the law, with $30 costs and disbursements to plaintiff-appellant, and motion granted, without prejudice, with $10 costs. To establish the defense that the plaintiff is not the real party in interest, it must appear that, by virtue of the payment of plaintiff’s claim for damages in full by the insurer or otherwise, the plaintiff was divested of any cause of action. (See Henderson v. Park Cent. Motors Serv., 225 App. Div. 788; Reddington v. Elco Merchandizing Corp., 236 App. Div. 64; Par-X Uniform Serv. Corp. v. Emigrant Ind. Sav. Bank, 268 App. Div. 699.) Where the insurer pays to the insured only a portion of the latter’s claim for a loss occasioned by the wrongdoing of another, the insured remains the real party in interest entitled to prosecute in his name an action against the wrongdoer. (See Van Romapaye Trucking Corp. v. Heebner, 85 N. Y. S. 2d 347, 348, and eases cited; 31 N. Y. Jur., Insurance, § 1620, p. 512, and cases cited; see, also, CPLR 1004; 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 1004.04, 1004.10, 1018.06.) The plaintiff here claims damages substantially in excess of the sum paid by his insurer; and .the defendants’ first and second defenses as alleged are insufficiently stated. If, under the circumstances and in the light of the foregoing, the defendants claim to have a complete defense to the action, then, upon proper showing, they may apply to Special Term for leave to amend their answer accordingly. Order entered on December 18, 1964 granting defendants’ motion for reargument unanimously affirmed, without costs and without disbursements. No opinion. Concur — Breitel, J. P., Rabin, Valcnte, Stevens and Eager, JJ.

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Order entered December 18, 1964, denying motion by plaintiff to dismiss the [434]*434first and second affirmative defenses contained in answer of defendants Klein and Marklein Realty Corporation, unanimously reversed, on the law, with $30 costs and disbursements to plaintiff-appellant, and motion granted, without prejudice, with $10 costs. To establish the defense that the plaintiff is not the real party in interest, it must appear that, by virtue of the payment of plaintiff’s claim for damages in full by the insurer or otherwise, the plaintiff was divested of any cause of action. (See Henderson v. Park Cent. Motors Serv., 225 App. Div. 788; Reddington v. Elco Merchandizing Corp., 236 App. Div. 64; Par-X Uniform Serv. Corp. v. Emigrant Ind. Sav. Bank, 268 App. Div. 699.) Where the insurer pays to the insured only a portion of the latter’s claim for a loss occasioned by the wrongdoing of another, the insured remains the real party in interest entitled to prosecute in his name an action against the wrongdoer. (See Van Romapaye Trucking Corp. v. Heebner, 85 N. Y. S. 2d 347, 348, and eases cited; 31 N. Y. Jur., Insurance, § 1620, p. 512, and cases cited; see, also, CPLR 1004; 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 1004.04, 1004.10, 1018.06.) The plaintiff here claims damages substantially in excess of the sum paid by his insurer; and .the defendants’ first and second defenses as alleged are insufficiently stated. If, under the circumstances and in the light of the foregoing, the defendants claim to have a complete defense to the action, then, upon proper showing, they may apply to Special Term for leave to amend their answer accordingly. Order entered on December 18, 1964 granting defendants’ motion for reargument unanimously affirmed, without costs and without disbursements. No opinion. Concur — Breitel, J. P., Rabin, Valcnte, Stevens and Eager, JJ.

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Bluebook (online)

24 A.D.2d 433, 260 N.Y.S.2d 799, 1965 N.Y. App. Div. LEXIS 3865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skinner-v-klein-nyappdiv-1965.

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