Opinion
06-13-2017
IRONSHORE INDEMNITY, INC. as Subrogee of The Related Companies, L.P., etc., Plaintiff–Appellant, v. W&W GLASS, LLC, et al., Defendants–Respondents. The Related Companies, L.P., et al., Nonparty Respondents.
Vogrin & Frimet, LLP, New York (George J. Vogrin of counsel), for appellant. Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for W&W Glass, LLC and Metal Sales Co., Inc., respondents. Cornell Grace, PC, New York (Keith D. Grace of counsel), for The Related Companies, L.P., 42nd and 10th Associates, LLC and Tishman Construction Corporation, respondents.
Vogrin & Frimet, LLP, New York (George J. Vogrin of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for W&W Glass, LLC and Metal Sales Co., Inc., respondents.
Cornell Grace, PC, New York (Keith D. Grace of counsel), for The Related Companies, L.P., 42nd and 10th Associates, LLC and Tishman Construction Corporation, respondents.
ACOSTA, P.J., RICHTER, ANDRIAS, KAHN, GESMER, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 25, 2016, dismissing the action, pursuant to an order, same court and Justice, entered February 11, 2016, which granted the motion of nonparty respondents (Related Companies) to quash subpoenas, intervene in this action, and dismiss the complaint, unanimously affirmed, with costs. Appeal from the order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The motion court properly permitted the intervention of the Related Companies, as they have a strong interest in this litigation, given that plaintiff purports to sue as their subrogee ( Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201, 906 N.Y.S.2d 231 [1st Dept.2010] ). Plaintiff did not preserve its argument that the Related Companies' motion was defective for failing to submit a proposed pleading, and we decline to review it ( Ronen v. Cohen, 126 A.D.3d 487, 487, 5 N.Y.S.3d 404 [1st Dept.2015] ). Were we to review it, we would find it unavailing (see id. , citing Ryder v. Travelers Ins. Co., 37 A.D.2d 797, 797, 324 N.Y.S.2d 804 [4th Dept.1971] ).
The motion court correctly dismissed the complaint, because plaintiff has no subrogation rights. Notwithstanding its current claims, plaintiff Ironshore did not accept the Related Companies as an additional insured, as it never made any payment in the underlying personal injury action on its behalf (see generally Hartford Acc. & Indem. Co. v. CNA Ins. Cos., 99 A.D.2d 310, 312, 472 N.Y.S.2d 342 [1st Dept.1984] ). Neither did Ironshore pay the Related Companies' defense costs in that action.
Plaintiff's subrogation claims for common-law indemnification, contribution, and equitable contribution are barred by Workers' Compensation Law § 11. Plaintiff did not allege a "grave injury" under that statute, nor did it present a bill of particulars or any other pleading that could evince a "grave injury" within the meaning of the statute ( Picaso v. 345 E. 73 Owners Corp., 101 A.D.3d 511, 512, 956 N.Y.S.2d 27 [1st Dept.2012] ; see Aramburu v. Midtown W.B., LLC, 126 A.D.3d 498, 501, 6 N.Y.S.3d 227 [1st Dept.2015] ).We have considered plaintiff's remaining contentions and find them unavailing.