| Romano v Whitehall Props., LLC |
| 2009 NY Slip Op 01461 [59 AD3d 697] |
| February 24, 2009 |
| Appellate Division, Second Department |
| John Romano, Plaintiff, v Whitehall Properties, LLC, etal., Appellants. Travelers Indemnity Insurance Company of America,Respondent. |
—[*1] Stewart, Greenblatt, Manning & Baez, Syosset, N.Y. (Lisa Levine and Christopher Cafaro ofcounsel), for additional defendant-respondent.
In an action to recover damages for personal injuries, the defendants Whitehall Properties,LLC, and Kreisler Borg Florman General Construction Co., Inc., appeal, as limited by their brief,from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated November 19,2007, as denied that branch of their motion which was to extinguish the workers' compensationlien asserted by the additional defendant Travelers Indemnity Insurance Company of America.
Ordered that the order is affirmed insofar as appealed from, with costs.
On November 16, 2000 the plaintiff, an employee of nonparty Sorbara ConstructionCompany (hereinafter Sorbara), was injured while working at a construction site owned by thedefendant Whitehall Properties, LLC (hereinafter Whitehall). Thereafter, the plaintiff filed aclaim for workers' compensation benefits, which were paid by Sorbara's workers' compensationcarrier, Travelers Indemnity Insurance Company of America (hereinafter Travelers). Theplaintiff also commenced a negligence action against Whitehall and the general contractor,Kreisler Borg Florman General Construction Co., Inc. (hereinafter Kreisler). Pursuant to ageneral liability policy, Travelers Indemnity paid the $2,000,000 policy limit in settlement of thenegligence action, and Whitehall's excess insurer paid the remainder of the amount due under thesettlement.[*2]
Contrary to the appellants' contention, the Supreme Courtproperly determined that Travelers' assertion of a workers' compensation lien against thesettlement to which it contributed as the general liability carrier would not violate theanti-subrogation rule (see Workers' Compensation Law § 29 [1]). "Pursuant to theantisubrogation rule, ' [a]n insurer . . . has no right of subrogation against its owninsured for a claim arising from the very risk for which the insured was covered' " (Lodovichetti v Baez, 31 AD3d718, 719 [2006], quoting North Star Reins. Corp. v Continental Ins. Co., 82 NY2d281, 294 [1993]). However, since Travelers' obligation to pay workers' compensation benefits toSorbara's employee did not arise under the general liability policy under which it was defendingWhitehall and Kreisler in the negligence action, but rather under a separate policy issued toSorbara, Travelers was not seeking a right of subrogation against its own insured for a claimarising from the very risk for which the insured was covered (see Hartford Acc. & Indem.Co. v Michigan Mut. Ins. Co., 61 NY2d 569 [1984]; McGurran v DiCanio Planned Dev.Corp., 216 AD2d 538 [1995]; cf. North Star Reins. Corp. v Continental Ins. Co., 82NY2d 281 [1993]).
The appellants' remaining contentions are without merit. Mastro, J.P., Florio, Covello andBelen, JJ., concur. [See 18 Misc 3d 343 (2007).]