| Greenwich Ins. Co. v New Amsterdam Assoc. |
| 2013 NY Slip Op 07809 [111 AD3d 543] |
| November 21, 2013 |
| Appellate Division, First Department |
| Greenwich Insurance Company, as Subrogee of VitalEquities, LLC, Appellant, v New Amsterdam Associates et al.,Respondents. |
—[*1] Ryan & Conlon, LLP, New York (Elizabeth E. Malang of counsel), forrespondents.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered August 23,2012, which denied plaintiff's motion to amend the complaint to substitute the name ofthe subrogor Vital Equities, LLC with the name Vintage Realty LLC, unanimouslyreversed, on the law, without costs, the motion granted, and Vintage Realty LLCsubstituted as subrogor. Order, same court and Justice, entered November 8, 2012,which, to the extent appealable, granted defendant's cross motion to dismiss thecomplaint, unanimously reversed, on the law, without costs, and the motion to dismissthe complaint denied. Appeal from order, same court and Justice, entered April 18, 2013,which denied plaintiff's motion denominated as one to renew and reargue the November8, 2012 order, unanimously dismissed, without costs, as academic.
Plaintiff subrogee's failure to name the correct subrogor "is not fatal" to its claimsince the subrogee is the real party in interest, it timely instituted this action after it paidthe fire damage claims for the loss incurred at the premises, and there is no prejudice todefendants (Continental Ins. Co. v Marx Co., 220 AD2d 343, 344 [1995]).Consequently, pursuant to the courts' power to correct errors (CPLR 2001), plaintiff'smotion should have been granted.
From the commencement of this litigation, defendants were provided withdocumentation identifying both Vintage Realty LLC and Vital Equities LLC as namedinsureds, including an insurance policy that was specifically amended to show thatVintage Realty was a named insured with respect to the damaged property. Moreover, allrelevant facts, including the damage calculation to the subject property, remainedunchanged.
Defendants claim that they have the right to "investigate or depose Vintage'smanager or other person's with knowledge of Vintage's procedures and responsibilities ofmaintaining the [damaged] premises," yet they deposed the building's superintendentwho was admittedly responsible for the building's maintenance. If defendants now needto question Vintage's manager, it is difficult to see how this will substantially delay thelitigation or cause any prejudice.
Dismissal of the complaint was improper since Greenwich is the true party in interest(see [*2]Continental Ins. Co., 220 AD2d at 344),and Vintage Realty LLC and Vital Equities, LLC, operating under the same managingmember, are related (see Manti v New York City Tr. Auth., 146 AD2d 551, 552[1st Dept 1989]). Concur—Gonzalez, P.J., Tom, Renwick, Freedman and Clark,JJ.