625 N.Y.S.2d 111 | N.Y. App. Div. | 1995
—Order unanimously reversed on the law with costs, motion denied, third-party complaint reinstated and cross motion granted. Memorandum: Plaintiff, a mechanic employed by third-party defendant, Modern Landfill, Inc. (Modern Landfill), was injured on the job
It is undisputed that R & S and Modern Landfill are sister corporations that are wholly owned subsidiaries of Modern Disposal Services, Inc. (Modern Disposal). In addition, R & S and Modern Landfill are both named as insureds under a commercial general liability insurance policy issued by the American Home Assurance Company to Modern Disposal.
Modern Landfill brought a motion for summary judgment seeking to dismiss the third-party complaint on the basis of the antisubrogation rule, asserting that the third-party action was an improper attempt by the insurer to subrogate against its own insured. R & S opposed the motion and cross-moved to dismiss the first four affirmative defenses. R & S asserted that the antisubrogation rule does not apply in the circumstances of this case because the liability policy excludes coverage for bodily injury to an employee of the insured arising out of and in the course of employment by the insured and Modern Landfill was covered for this risk by its workers’ compensation carrier, the State Insurance Fund, which was providing a defense to the third-party action. Therefore, the insurer was not seeking subrogation against its own insured for a risk for which it contracted to provide coverage.
Supreme Court erred in summarily dismissing the third-party complaint of R & S and in denying the cross motion of R & S to dismiss the first four affirmative defenses.
Plaintiff seeks money damages for injuries sustained during
Reversal revives the cross motion of R & S to dismiss the affirmative defenses set forth in Modern Landfill’s answer. Because we have the same power and discretion as Supreme Court and the record is complete, we can decide the cross motion (see, State of New York v U. W. Marx, Inc., supra; Meraner v Albany Med. Ctr., 199 AD2d 740, 742). The first affirmative defense has no merit because the provisions of the Workers’ Compensation Law do not bar a third-party action against the employer for indemnification or contribution (see, Dole v Dow Chem. Co., 30 NY2d 143, 152). The remaining affirmative defenses at issue are likewise without merit and must be dismissed for reasons hereinbefore set forth (see, North Star Reins. Corp. v Continental Ins. Co., supra). (Appeal from Order of Supreme Court, Niagara County, Mintz, J.— Summary Judgment.) Present—Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ.