COUGHLAN v. TURNER CONSTRUCTION COMPANY (2002)

Order, Supreme Court, New York County (Walter Tolub, J.), entered April 5, 2000, which, insofar as appealed from, as limited by defendants/third-party plaintiffs' brief, dismissed their second third-party complaint against Canron Construction Corporation, unanimously affirmed, without costs.

 An insurance carrier has no right of subrogation against its own insured to recover for a claim which arises out of the very same risk for which the insured is covered (Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 468, 510 N.Y.S.2d 67, 502 N.E.2d 982).   Canron Construction Corporation is a named insured of Continental Insurance Company, which also insured defendants/third-party plaintiffs.   The contract between the parties constituted an “insured contract” and thus, the exclusion clause of the insurance policy, which defendants/third-party plaintiffs claim is applicable herein, does not apply (see, Maksymowicz v. New York City Bd. of Educ., 232 A.D.2d 223, 647 N.Y.S.2d 780).

 Moreover, plaintiff, while working on the flatbed portion of a truck, was injured when a crane, which was being used to off-load the truck, struck its cab, causing him to fall.   There was no showing that any negligent use of the truck caused the injury (see, Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 693 N.Y.S.2d 493, 715 N.E.2d 495);  thus the auto liability coverage did not apply.

 The argument that Canron Construction waived the anti-subrogation rule by failing to raise it in its answer was not raised by the defendants/third-party plaintiffs in the Supreme Court and therefore may not be raised in this appeal (see, Chateau D'If Corp. v. New York City, 219 A.D.2d 205, 641 N.Y.S.2d 252, lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605).

The Decision and Order of this Court entered herein on December 18, 2001 is hereby recalled and vacated.   See M-597 decided simultaneously herewith.