STEWARD v. Utica Mutual Assurance Company, Nonparty-Appellant (and another Third-Party Action). (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, nonparty Utica Mutual Assurance Company appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated August 1, 2023.  The order denied the motion of nonparty Utica Mutual Assurance Company for leave to intervene in the action.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with one bill of costs payable by the respondents, and the motion of nonparty Utica Mutual Assurance Company for leave to intervene in the action is granted.

The plaintiff was injured when he was hit by a vehicle at a construction site where he was working.  In 2019, the plaintiff commenced the instant action for personal injuries against various defendants who owned the property or were involved in the construction project.  In 2020, following an arbitration proceeding, the plaintiff was awarded $775,000 in supplementary uninsured/underinsured motorists benefits from nonparty Utica Mutual Assurance Company (hereinafter Utica) based upon coverage from an insurance policy held by his employer.  In April 2022, Utica moved for leave to intervene in the action for the purpose of asserting a cause of action for subrogation.  The Supreme Court denied the motion.  Utica appeals.

Contrary to the contentions of the defendants third-party plaintiffs and Gypsum New York Sales Corp., Utica's subrogation cause of action was timely under the relation-back doctrine.  An action to recover damages for personal injuries is generally subject to a three-year statute of limitations (see CPLR 214[5];  Ruiz v. Sanchez, 219 A.D.3d 1363, 1363, 195 N.Y.S.3d 796 ).  However, the relation-back doctrine, which is codified in CPLR 203(c), permits a party to interpose a claim or cause of action that would otherwise be time-barred.  “[A] party may be permitted to intervene and to relate its claim back if the proposed intervenor's claim and that of the original [plaintiff] are based on the same transaction or occurrence.  Also, the proposed intervenor and the original [plaintiff] must be so closely related that the original [plaintiff's] claim would have given the [defendant] notice of the proposed intervenor's specific claim so that the imposition of the additional claim would not prejudice the [defendant]” (Matter of Greater N.Y. Health Care Facilities Assn. v. DeBuono, 91 N.Y.2d 716, 721, 674 N.Y.S.2d 634, 697 N.E.2d 589 [“we discern no distinction, for relation back purposes, between a proceeding commenced under (CPLR) article 78 and an action”]).  Here, Utica's subrogation cause of action is not time-barred, as it merely seeks reimbursement for coverage tendered for the plaintiff's personal injuries.  This cause of action arises out of the same occurrence that gave rise to the plaintiff's causes of action and includes the same questions of liability related to the accident.  It is, therefore, similar enough to the plaintiff's causes of action that the defendants were thereby placed on notice of the insurer's claim (see McHale v. Anthony, 41 A.D.3d 265, 266, 839 N.Y.S.2d 33).

A person is permitted to intervene in an action as of right when, among other things, “ ‘the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment’ ” (Phoenix Life Ins. Co. v. Jacob P Ilit A, 177 A.D.3d 1008, 1008, 111 N.Y.S.3d 201, quoting CPLR 1012[a][3]).  A person is also permitted to intervene in an action as of right pursuant to CPLR 1012, among other circumstances, “when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment” (Atlantic Ave. Capital, LLC v. 980 Atl. Holdings, LLC, 231 A.D.3d 692, 694, 220 N.Y.S.3d 315 [internal quotation marks omitted];  see CPLR 1012[a][2];  Wells Fargo Bank, N.A. v. Mazzara, 124 A.D.3d 875, 875, 2 N.Y.S.3d 553).  “[T]he court, in its discretion, may permit a person to intervene, among other things, ‘when the person's claim or defense and the main action have a common question of law or fact’ ” (Al–Rowmeim v. Alazwear, 233 A.D.3d 640, 641–642, 223 N.Y.S.3d 217 [internal quotation marks omitted], quoting Matter of Sclafani Petroleum, Inc., 173 A.D.3d 1042, 1043, 100 N.Y.S.3d 558;  see CPLR 1013).  “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted ‘where the intervenor has a real and substantial interest in the outcome of the proceedings’ ” (Global Team Vernon, LLC v. Vernon Realty Holding, LLC, 93 A.D.3d 819, 820, 941 N.Y.S.2d 631, quoting Wells Fargo Bank, N.A. v. McLean, 70 A.D.3d 676, 677, 894 N.Y.S.2d 487;  see Al–Rowmeim v. Alazwear, 233 A.D.3d at 641–642, 223 N.Y.S.3d 217).

“ ‘In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party’ ” (Deutsche Bank Natl. Trust Co. v. Sharrow, 232 A.D.3d 767, 769, 223 N.Y.S.3d 117, quoting CPLR 1013;  see Wells Fargo Bank, N.A. v. Mazzara, 124 A.D.3d at 876, 2 N.Y.S.3d 553).  However, a motion to intervene “shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought” (CPLR 1014;  see Matter of Merestead, 188 A.D.3d 690, 691, 133 N.Y.S.3d 607;  Phoenix Life Ins. Co. v. Jacob P Ilit A, 177 A.D.3d at 1008, 111 N.Y.S.3d 201).

Here, under the circumstances of this case, the Supreme Court improvidently exercised its discretion by denying Utica's motion for leave to intervene in the action.  As an initial matter, although Utica failed to annex a proposed complaint to its initial motion papers, it ultimately complied with CPLR 1014 by annexing the proposed complaint to its affirmation in reply (see generally id. § 2001;  Tenenbaum v. Ziv, 231 A.D.3d 1181, 1182, 219 N.Y.S.3d 180;  cf.  Landa v. Poloncarz, 215 A.D.3d 739, 741, 187 N.Y.S.3d 283).  Further, here, Utica seeks leave to intervene for the purpose of asserting a cause of action for subrogation.

“ ‘Subrogation is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss’ ” (Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 3 N.Y.3d 200, 206, 785 N.Y.S.2d 399, 818 N.E.2d 1140, quoting Winkelmann v. Excelsior Ins. Co., 85 N.Y.2d 577, 581, 626 N.Y.S.2d 994, 650 N.E.2d 841).  “Subrogation is an equitable doctrine that allows an insurer to ‘stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse’ ” (Utica Mut. Ins. Co. v. Brooklyn Navy Yard Dev. Corp., 52 A.D.3d 821, 822, 861 N.Y.S.2d 724 [internal quotation marks omitted], quoting North Star Reins. Corp. v. Continental Ins. Co., 82 N.Y.2d 281, 294, 604 N.Y.S.2d 510, 624 N.E.2d 647).  “Thus, the insurer can only recover if the insured could have recovered and its claim as subrogee is subject to whatever defenses the third party might have asserted against its insured” (Humbach v. Goldstein, 229 A.D.2d 64, 67, 653 N.Y.S.2d 950 [internal quotation marks omitted];  Federal Ins. Co. v. Arthur Andersen & Co., 75 N.Y.2d 366, 372, 553 N.Y.S.2d 291, 552 N.E.2d 870).

Here, Utica's cause of action for subrogation has common questions of law and fact with the plaintiff's causes of action, as Utica concedes that the proposed complaint “mirrors, in all respects, the complaint in the within suit.”  By intervention, Utica stands in the shoes of the plaintiff.  Utica would be bound by the judgment in this case and, without intervention, its interests are not represented.  Further, there would be no prejudice to the defendants, as intervention would not cause delay, a need for additional discovery, or motion practice.

Accordingly, as the subrogation cause of action is timely pursuant to the relation-back doctrine, under the circumstances of this case, the Supreme Court should have granted Utica's motion for leave to intervene in the action.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., GENOVESI, WOOTEN and LOVE, JJ., concur.