Federal Ins. Co. v Tyco Intl., Ltd.

[*1] Federal Ins. Co. v Tyco Intl., Ltd. 2004 NY Slip Op 51511(U) Decided on October 26, 2004 Supreme Court, New York County Freedman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2004
Supreme Court, New York County

FEDERAL INSURANCE COMPANY, Plaintiff,

against

TYCO INTERNATIONAL, LTD., Defendants.



601416/04

Helen E. Freedman, J.

Defendants, Kozlowski and Swartz move to join Twin City Fire Insurance Co. ("Twin City") as a defendant in this interpleader action brought by Federal Insurance Company to determine which of various defendants are entitled to its insurance coverage. Twin City is one of the excess insurers affording coverage to some or all of the defendants, and is thus potentially liable for some of or similar coverage to that plaintiff is obligated to afford.

Pursuant to CPLR §1007, "...a defendant may proceed against a person not a party who is [*2]or may be liable to that defendant for all or part of plaintiff's claim against that defendant by filing a third party summons..." The claim is denominated as a third party complaint.

Plaintiff, Federal Insurance Co. opposes the impleader on the ground that it owes nothing to Twin City or any other excess insurer. However, this "vouching in" type of provision of CPLR 1007 does not require plaintiff to have an obligation to any third party. Rather it provides that where any part of the claim against the plaintiff may be satisfied by a third party (as here), third party impleader is permissible. See Vincent Alexander: Practice Commentaries, 7B McKinney's Cons. L. § 1007, Page 42 et seq. This is consistent with the view of CPLR § 1007 that was adopted in the case of George Cohen Agency v. Donald S. Perlman Agency, 51 NY2d 358 (1980) where the court denied dismissal of a third party claim on the ground that a party may bring before the court another who had shared responsibility. The fact that such action affects removal does not negate its validity. See George Cohen Agency, supra.

Based on the foregoing, assuming that defendants Swartz and Kozlowski have served answers to plaintiff's complaint, they may serve a third party complaint against Twin City.

This is the decision of the Court.

Dated: October 26, 2004

Helen E. Freedman, J.S.C.