Point Tennis Co. v. Irvin Industries Corp.

Jun 5, 1978
Versions:63 A.D.2d 967
405 N.Y.S.2d 506
1978 N.Y. App. Div. LEXIS 12017

In an action to recover for property damage, plaintiff appeals from an order of the Supreme Court, Nassau County, entered December 15, 1977, which granted the motion of defendant Irvin Industries Corp. for summary judgment. Order reversed, with $50 costs and disbursements, and motion denied. CPLR 1004 authorizes suit in the name of an insured person who has executed a "loan receipt” in favor of his insurer. Plaintiff concededly executed a loan receipt in exchange for payment of his claim. Accordingly, defendant-respondent’s objection that the plaintiff, having received payment and divested itself of a financial interest in the lawsuit, has no standing to pursue this action, is without merit (see Rosenthal Jewelry Corp. v St. Paul Fire & Mar. Ins. Co., 21 AD2d 160, 164, affd 17 NY2d 857). This statute constitutes a legislative exception to the "real party in interest” doctrine and laudably prevents the disclosure of insurance coverage by plaintiff. The loan receipt executed by plaintiff, having vested all right and interest in any recovery to its insurer, concededly renders this action a subrogation claim. Accordingly, the release executed by plaintiff in favor of defendant, which contained an express exception for a subrogation claim may not be utilized to bar this action. Gulotta, J. P., Shapiro, Cohalan and O’Connor, JJ., concur.