WILK v. COLUMBIA UNIVERSITY (2019)

Order, Supreme Court, New York County (George J. Silver, J.), entered July 18, 2018, which granted fourth third-party defendant's (Breeze) motion to amend its answer to assert, inter alia, the affirmative defenses of waiver of subrogation and antisubrogation and, upon amendment, to dismiss the fourth third-party complaint, unanimously affirmed, with costs.

The main action was commenced after the decedent, while employed by Breeze at a construction site, sustained fatal injuries falling through an elevator shaft window that fourth third-party plaintiff (ACT) had removed and covered with a plastic sheet.  The subcontract between Breeze and ACT required ACT to obtain insurance naming, inter alia, Breeze as an additional insured and containing a waiver of subrogation clause in favor of Breeze.  ACT obtained such a policy from Century Surety Company.

Summary judgment ultimately was granted to plaintiff, the administrator of the decedent's estate, on the Labor Law claims.  In addition, it was determined that ACT was required to indemnify the building owner and construction manager of the project where the accident occurred because the accident arose out of ACT's work and thus fell within the broad language of the contractual indemnification agreement between ACT and Breeze (see Wilk v. Columbia Univ., 150 A.D.3d 502, 503, 57 N.Y.S.3d 5 [1st Dept. 2017] ).  ACT then commenced the fourth third-party action asserting claims against Breeze for contribution and common-law and contractual indemnification.

Breeze's motion to amend its answer to include, inter alia, the affirmative defenses of waiver of subrogation and the antisubrogation rule was correctly granted.  ACT failed to show that Breeze's reliance on the same subcontract that ACT relies on has “hindered [ACT] in the preparation of [its] case” or “prevented [it] from taking some measure in support of [its] position” (see Jacobson v. McNeil Consumer & Specialty Pharms., 68 A.D.3d 652, 655, 891 N.Y.S.2d 387 [1st Dept. 2009] [internal quotation marks omitted] ).  Moreover, as a party to its subcontract with Breeze, ACT cannot claim surprise or prejudice (see e.g. American Scientific Light. Corp. v. Hamilton Plaza Assoc., 144 A.D.3d 614, 615, 40 N.Y.S.3d 485 [2d Dept. 2016] ).

The fourth third-party action was correctly dismissed on the ground of waiver of subrogation (see generally Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 471, 510 N.Y.S.2d 67, 502 N.E.2d 982 [1986] ).  Although ACT is the named fourth third-party plaintiff, Century, as its insurer, is the real party in interest, because it is covering ACT's defense and liability.  Thus, the waiver of subrogation must apply to ACT's claims (see Lim v. Atlas–Gem Erectors Co., 225 A.D.2d 304, 306, 638 N.Y.S.2d 946 [1st Dept. 1996];  see also Loctite VSI v. Chemfab N.Y., 268 A.D.2d 869, 871, 701 N.Y.S.2d 723 [3rd Dept. 2000] ).

The complaint was correctly dismissed for the additional reason that permitting ACT to maintain a claim against Breeze, when both are insured by Century, would violate the antisubrogation rule (see North Star Reins. Corp. v. Continental Ins. Co., 82 N.Y.2d 281, 294–295, 604 N.Y.S.2d 510, 624 N.E.2d 647 [1993] ).

We have considered ACT's remaining arguments and find them unavailing.