NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY v. BARRY (2009)

In an action for equitable subrogation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated October 9, 2008, which denied its motion for summary judgment on its claim for contribution against the defendant, and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment on its claim for contribution against the defendant is granted, the defendant's cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment in favor of the plaintiff and against the defendant in the principal sum of $175,000.

The facts of this case are set forth in prior appeals to this Court relating to this matter (see Barry v. Hildreth, 9 A.D.3d 341, 780 N.Y.S.2d 159;  New York Cent. Mut. Fire Ins. Co. v. Hildreth, 40 A.D.3d 602, 835 N.Y.S.2d 409).

 Contrary to the defendant's contention, the plaintiff established its entitlement to judgment as a matter of law.   The plaintiff's claim for equitable subrogation was not barred by the general release executed by the plaintiff's insured (see Fasso v. Doerr, 12 N.Y.3d 80, 88, 875 N.Y.S.2d 846, 903 N.E.2d 1167;  Aetna Cas. & Sur. Co. v. Bekins Van Lines Co., 67 N.Y.2d 901, 902, 501 N.Y.S.2d 806, 492 N.E.2d 1222;  Ocean Acc. & Guar. Corp. v. Hooker Electrochemical Co., 240 N.Y. 37, 147 N.E. 351;  Group Health, Inc. v. Mid-Hudson Cablevision, Inc., 58 A.D.3d 1029, 871 N.Y.S.2d 780;  New York Cent. Mut. Fire Ins. Co. v. Hildreth, 40 A.D.3d 602, 835 N.Y.S.2d 409;  Travelers Prop. Cas. v. Giorgio, 21 A.D.3d 1086, 803 N.Y.S.2d 614;  Lesnick & Mazarin v. Cutler, 255 A.D.2d 367, 679 N.Y.S.2d 693;  Silinsky v. State-Wide Ins. Co., 30 A.D.2d 1, 3, 289 N.Y.S.2d 541).   Further, the plaintiff's claim was not barred by collateral estoppel.   The plaintiff's insured's apparent abandonment, pursuant to CPLR 3215(c), of a counterclaim against the defendant for contribution cannot be characterized as an adjudication on the merits (see Sanders v. Marino Falcone Brick Contr., 133 A.D.2d 342, 519 N.Y.S.2d 242), precluding further litigation (see Bank of N.Y. v. LS Monticello JV, 209 A.D.2d 464, 619 N.Y.S.2d 639;  see Peterson v. Troy, 96 A.D.2d 856, 465 N.Y.S.2d 771).   In opposition, the defendant failed to raise a triable issue of fact.

The defendant's remaining contentions are without merit.