State v. Thalle Construction Co.

248 A.D.2d 257, 668 N.Y.S.2d 888, 1998 N.Y. App. Div. LEXIS 2671

Opinion

—Order, Supreme Court, New York County (Carol Arber, J.), entered on or about February 3, 1997, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Maryland Casualty Company (Maryland), which defended plaintiff State of New York in the underlying action against it by defendant Thalle Construction Co.’s (Thalle) employee, is the real party in interest in this action by the State against Thalle and its workers’ compensation and employer’s liability insurer, The State Insurance Fund (The Fund), for common-law indemnification. Since Northern Insurance Co. (Northern) covered Thalle’s common-law indemnification obligation under an “insured contract” exception to the exclusion for employment-related injuries, and it is not disputed that Maryland and Northern are both wholly owned subsidiaries of The Maryland Commercial Insurance Group, the action against Thalle is barred by the antisubrogation rule (see, Maksymowicz v New York City Bd. of Educ., 232 AD2d 223; Washington v New York City Indus. Dev. Agency, 215 AD2d 297). As against The Fund, the action was properly dismissed absent a contract between it and the State.

Concur — Lerner, P. J., Sullivan, Rosenberger, Nardelli, and Andrias, JJ.