44 A.D.2d 761 | N.Y. App. Div. | 1974
Order unanimously affirmed, with costs. Memorandum: Plaintiff at the behest of his insurance carrier commenced an action for property damage to his vehicle in the amount of $1,905. He also instituted a personal injury action in Supreme Court against the same defendants arising out of the same occurrence, seeking damages in the amount of $75,000. Pursuant to the standard collision policy, benefits paid out to plaintiff for collision damage gave plaintiff’s carrier a subrogation right to collect from any third party liable to plaintiff for such damage, and plaintiff would be required to execute and deliver all papers and instruments necessary to the insurance company in its prosecution of its rights as subrogee. In light thereof, plaintiff had little or no legal or equitable interest in the property damage claim involved in the City Court action and by reason of his obligation under his policy he had no control over the litigation. The collateral estoppel doctrine as enunciated in Schwartz v. Public Administrator of County of Bronx (24