Government Employees Ins. Co. v Sherpa

Government Employees Ins. Co. v Sherpa 2014 NY Slip Op 05411 Decided on July 23, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 23, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
CHERYL E. CHAMBERS
PLUMMER E. LOTT
COLLEEN D. DUFFY, JJ.
2013-05552
(Index No. 700876/12)

[*1]Government Employees Insurance Company, as subrogee of David Waithe, respondent,

v

Danurbu Lama Sherpa, appellant.

Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), for appellant.

Hennessy & Walker Group, P.C., New York, N.Y. (Brandon M. Dickstein of counsel), for respondent.

DECISION & ORDER

In a subrogation action to recover benefits paid by the plaintiff under a policy of insurance, the defendant appeals from an order of the Supreme Court, Queens County (McDonald, J.), entered April 30, 2013, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly concluded that the defendant failed to demonstrate, prima facie, that the plaintiff lacks standing to maintain this action as the subrogee of its insured (see 11 NYCRR 60-2.3; Cashel v Cashel, 94 AD3d 684, 688; Menorah Nursing Home v Zukov, 153 AD2d 13, 17-18). Thus, the court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint based on lack of standing.

The Supreme Court properly denied, as premature, that branch of the defendant's motion which was for summary judgment dismissing the complaint on the issue of liability (see CPLR 3212[f]; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637).

The defendant's remaining contention is without merit.

SKELOS, J.P., CHAMBERS, LOTT and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court