Opinion
CA 05-00530.
November 10, 2005.
Appeal from an order of the Supreme Court, Erie County (John P. Lane, J.), entered June 8, 2004. The order denied the motion of HealthNow New York, Inc. for permission to intervene in the action to assert an equitable subrogation claim against defendants.
WEBSTER SZANYI LLP, BUFFALO (FRANK V. BALON OF COUNSEL), FOR APPELLANT.
FRANCIS M. LETRO, ESQ., BUFFALO (KATHLEEN J. MARTIN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Present: Pigott, Jr., P.J., Hurlbutt, Martoche, Pine and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is granted.
Memorandum: Plaintiffs commenced this negligence and medical malpractice action seeking damages for injuries sustained by Daniel C. Oakes (plaintiff). Supreme Court erred in denying the motion of HealthNow New York, Inc. (HealthNow), plaintiff's health insurer, for permission to intervene in the action. In denying the motion, the court determined that HealthNow's motion was premature. That was error. HealthNow's equitable subrogation rights accrued upon payment of the medical expenses under the policy ( see Teichman v. Community Hosp. of W. Suffolk, 87 NY2d 514, 521). Upon such payment, HealthNow was entitled to commence a direct action against defendants to recover those medical payments ( see id. at 521-522) or, contrary to the court's determination, HealthNow instead was entitled to move for permission to intervene in plaintiffs' action. With respect to the merits of HealthNow's motion, we conclude that the court abused its discretion in denying the motion. HealthNow established that its claim and that of plaintiffs share common questions of law and fact ( see CPLR 1013; Kaczmarski v. Suddaby, 9 AD3d 847, 848, lv dismissed 3 NY3d 738), and HealthNow further established "that its intervention would not unduly delay [plaintiffs'] action or unduly prejudice the rights of plaintiffs" ( Kaczmarski, 9 AD3d at 848; see CPLR 1013; Omiatek v. Marine Midland Bank, N.A., 9 AD3d 831, 832, lv dismissed 3 NY3d 738).