Admiral Indem. Co. v. Johnson

Admiral Indem. Co. v Johnson (2020 NY Slip Op 07267)

Admiral Indem. Co. v Johnson

2020 NY Slip Op 07267

Decided on December 03, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.

Index No. 159548/16 Appeal No. 12560N Case No. 2020-02616

[*1]Admiral Indemnity Co., as Subrogee of Lenox Condominium, Plaintiff-Respondent,

v

Timothy Johnson, Defendant-Appellant.

Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for appellant.

Wenig & Wenig, PLLC, New York (Alan Wenig of counsel), for respondent.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered April 21, 2020, which denied defendant's motion for leave to amend the answer and, upon granting leave, dismiss the complaint pursuant to CPLR 3211, or for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, and the motion to dismiss granted. The Clerk is directed to enter judgment accordingly.

Plaintiff, as subrogee of the condominium association, seeks reimbursement for its payment to the association, pursuant to an insurance policy, for property damage that plaintiff [*2]alleges resulted from a fire emanating from the unit owned by defendant. However, the insurance policy provides, "We [plaintiff] waive our rights to recover payment from any unit-owner of the condominium that is shown in the Declarations." The condominium association, of which defendant was a unit holder, is listed in the declarations. Thus, the policy unambiguously waives plaintiff's subrogation rights with respect to a subrogation claim against defendant(see Allstate Indem. Co. v Virfa Holdings, LLC, 124 AD3d 528 [1st Dept 2015]; see also Payson v 50 Sutton Place S. Owners, Inc., 107 AD3d 506 [1st Dept 2013]).

We have considered plaintiff's other arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 3, 2020