STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. POLGE (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as Subrogee of Nancy J. Kelly and Susan M. Isgar, Appellant, v. Greg P. POLGE and Marlene A. Polge, Respondents.

Decided: February 10, 1999

Present: DENMAN, P.J., GREEN, HAYES, WISNER and CALLAHAN, JJ.

MacKenzie, Smith, Lewis, Jennifer McCoombs, Syracuse, for Plaintiff-Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse, for Defendants-Respondents.

Supreme Court properly granted defendants' motions for summary judgment dismissing plaintiff's subrogation action. By suing defendants as subrogee of Nancy J. Kelly and Susan M. Isgar, plaintiff “is subject to whatever rules of estoppel would apply to the insured” (D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 665, 563 N.Y.S.2d 24, 564 N.E.2d 634). Kelly's action for personal injuries resulted in a verdict of no cause of action. The rights of the insurer as subrogee are derivative and limited to such rights as the insured “ ‘would have had against [a] third party for its default or wrongdoing’ ” (Federal Ins. Co. v. Andersen & Co., 75 N.Y.2d 366, 372, 553 N.Y.S.2d 291, 552 N.E.2d 870). Thus, plaintiff is subject to whatever defenses defendants might have asserted against Kelly.

Order unanimously affirmed with costs.

MEMORANDUM:

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