Opinion
2019-01180 Index No. 55799/16
07-01-2020
Dominick L. COLABELLA, et al., Appellants, v. Bertina HERNANDEZ, et al., Respondents.
Law Offices of Richard G. Monaco, P.C., South Salem, NY, for appellants. Craig P. Curcio, Middletown, N.Y. (Ryan Bannon of counsel), for respondents.
Law Offices of Richard G. Monaco, P.C., South Salem, NY, for appellants.
Craig P. Curcio, Middletown, N.Y. (Ryan Bannon of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.
DECISION & ORDER In an action to recover damages for loss of use and diminution in value of a vehicle, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Helen M. Blackwood, J.), dated December 19, 2019. The order, in effect, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is reversed, on the law, with costs, and that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint is denied.
The plaintiffs' vehicle was damaged in an accident with a vehicle operated by the defendant Bertina Hernandez and owned by the defendant Jose E. Hernandez. At the time of the accident, the plaintiffs' vehicle was insured by ACE Private Risk Services (hereinafter ACE). ACE paid to repair the plaintiffs' vehicle. Then, as subrogree, ACE negotiated a settlement with the defendants' insurance company in exchange for a release. The amount paid was less than the coverage provided by the plaintiffs' policy.
Despite the repairs to the vehicle, the plaintiffs allege that there was a diminution in value of $60,226. The plaintiffs also allege that they suffered approximately $349,008 in damages for the loss of use of the vehicle. They commenced this action against the defendants to recover for those damages, which were not paid by the plaintiffs' insurance company.
The defendants moved, inter alia, pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint, arguing that the action could not be maintained under the terms of the release. The Supreme Court, in effect, granted that branch of the motion, and the plaintiffs appeal. " ‘[W]hen parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms’ " ( Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 403, 892 N.Y.S.2d 303, 920 N.E.2d 359, quoting Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876 ; see Gristede's Operating Corp. v. Scarsdale Shopping Ctr. Assoc., LLC, 176 A.D.3d 1185, 1187–1188, 111 N.Y.S.3d 400 ). "Courts may not ‘by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing’ " ( Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d at 404, 892 N.Y.S.2d 303, 920 N.E.2d 359, quoting Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199, 738 N.Y.S.2d 658, 764 N.E.2d 958 ; see Gristede's Operating Corp. v. Scarsdale Shopping Ctr. Assoc., LLC, 176 A.D.3d at 1187–1188, 111 N.Y.S.3d 400 ).
The plaintiffs' insurance policy with ACE provided that, "if [ACE] pay[s] money to a person under the terms of this policy, that person's right to recover any damages is automatically transferred to [ACE]." However, the same provision of the plaintiffs' insurance policy included an exception for damage to a vehicle, expressly stating that "[t]his right [to recover damages] does not apply to: ... damage to a vehicle, unless it was being driven without permission." Because the subrogation language of the plaintiffs' insurance policy, by its own terms, does not apply to claims of property damage to a vehicle which, as was the case here, was being driven with permission, the plaintiffs' insurer did not have a contractual right to subrogation. The right of the plaintiffs' insurer in equitable subrogation to obtain recovery for the amounts it paid is limited and is divisible and independent of the insured's right to sue for the amount of the loss remaining unreimbursed (see Winkelmann v. Excelsior Ins. Co., 85 N.Y.2d 577, 582, 626 N.Y.S.2d 994, 650 N.E.2d 841 ; Federal Ins. Co. v. Arthur Andersen & Co., 75 N.Y.2d 366, 374, 553 N.Y.S.2d 291, 552 N.E.2d 870 ). The plaintiffs' claims against the defendants were subrogated only to the extent that the plaintiffs received payment under their insurance policy. ACE only had the authority to settle the repair claims and could bind the plaintiffs to a release only to that extent. ACE did not have the authority to settle those claims which were not paid by it and, therefore, the release given by ACE does not preclude the action at bar (see Winkelmann v. Hockins, 204 A.D.2d 623, 624, 612 N.Y.S.2d 230 ). The insurance policy specifically waives ACE's right to recoup in the context of property damage to a vehicle, and ACE cannot release rights that it does not contractually own (see Duane Reade v. Reva Holding Corp., 30 A.D.3d 229, 232–236, 818 N.Y.S.2d 9 ). Accordingly, we disagree with the Supreme Court's determination, in effect, to grant that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint.
SCHEINKMAN, P.J., RIVERA, ROMAN and COHEN, JJ., concur.