| Augello v Koenig-Rivkin |
| 2008 NY Slip Op 08690 [56 AD3d 503] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Leonard J. Augello, Respondent, v Laura Koenig-Rivkin etal., Respondents. New York Central Mutual Fire Insurance Company, NonpartyAppellant. |
—[*1] Charles M. Hymowitz, P.C., Brooklyn, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, nonparty New York Central MutualFire Insurance Company appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Whelan, J.), dated August 7, 2007, as denied its motion forleave to substitute itself, as subrogee of the plaintiff, for the plaintiff in the instant action, tosubstitute counsel, and to amend the caption accordingly.
Ordered that the order is affirmed insofar as appealed from, with costs.
"CPLR 1004, the exception to the real party in interest rule, provides that an insured personwho has executed a subrogation receipt or other similar agreement may sue without joining theperson for whose interest the action is brought" (CNA Ins. Co. v Cacioppo Elec. Contrs.,206 AD2d 399, 400 [1994]). While an insurer also has the right to commence an action onbehalf of its insured even where there is a subrogation agreement between the parties, "[n]eitherthe case law nor the statute require that the insurance company be substituted as the plaintiffunder such circumstances" (id. at 400; see generally Krieger v Insurance Co. of N.Am., 66 AD2d 1025 [1978]; Point Tennis Co. v Irvin Indus. Corp., 63 AD2d 967[1978]).
Here, pursuant to the release and trust agreement (hereinafter the release) executed [*2]by the plaintiff upon receipt of the underinsured motorist benefitspaid to him by the nonparty appellant (hereinafter the insurer), the plaintiff agreed, inter alia, to"hold any moneys received as a result of settlement or judgment in trust for the [insurer] to bepaid to said [insurer] immediately upon recovery thereof provided that any sum received inexcess of the amount paid by the [insurer] . . . shall be retained by the [plaintiff].""The meaning and coverage of a general release necessarily depends upon the controversy beingsettled and upon the purpose for which the release was given. A release may not be read to covermatters which the parties did not intend to cover" (Gale v Citicorp, 278 AD2d 197[2000]; see generally Kaminsky v Gamache, 298 AD2d 361, 361-362 [2002]).
The purpose of the release in this case was to protect the insurer's subrogation claim whilealso protecting the right of the plaintiff to retain any recovery in excess of the insurer'ssubrogation claim. Thus, where, as here, the plaintiff seeks damages in excess of the insurer'ssubrogation claim, the release cannot be interpreted to require the substitutions requested by theinsurer (cf. Faraino v Centennial Ins. Co., 103 AD2d 790 [1984]; Skinner v Klein,24 AD2d 433, 434 [1965]).
Accordingly, the Supreme Court properly denied the insurer's motion. Mastro, J.P., Skelos,Covello and Leventhal, JJ., concur.