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Mcelroye v. City of Rochester

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 5, 1993
190 A.D.2d 1025 (N.Y. App. Div. 1993)

Opinion

February 5, 1993

Appeal from the Supreme Court, Monroe County, Cornelius, J.

Present — Boomer, J.P., Pine, Lawton, Boehm and Fallon, JJ.


Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment to third-party defendant dismissing the third-party complaint. Because Argonaut Insurance Company insured both third-party plaintiffs and third-party defendant, it was not entitled to subrogation so as to seek indemnification from third-party defendant. To permit Argonaut "to claim indemnification here would, directly or indirectly, place the insurer's own interests at variance with those of its insured" (Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 N.Y.2d 465, 472). Such a conflict would exist whether the parties were insured by the same insurance company, under the same policy, as in Pennsylvania Gen. Ins. Co. v Austin Powder Co. (supra), or under separate policies, as here. Third-party plaintiffs failed to preserve for our review their argument that a question of fact exists whether the policy of insurance issued by Argonaut to third-party defendant was in effect at the time of the accident.


Summaries of

Mcelroye v. City of Rochester

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 5, 1993
190 A.D.2d 1025 (N.Y. App. Div. 1993)
Case details for

Mcelroye v. City of Rochester

Case Details

Full title:HENRY MCELROYE et al., Plaintiffs, v. CITY OF ROCHESTER et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 5, 1993

Citations

190 A.D.2d 1025 (N.Y. App. Div. 1993)

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