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11 ESSEX STREET CORP. v. TOWER INSURANCE COMPANY OF NEW YORK

70 A.D.3d 402 (2010)

894 N.Y.S.2d 45

11 ESSEX STREET CORP., Respondent, v. TOWER INSURANCE COMPANY OF NEW YORK, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 2, 2010.

Tower should not be allowed to intervene in 11 Essex's tort action against 7 Essex. First, the policy limits Tower's right of subrogation to payments it makes under the policy, and no such payments have yet been made (see Humbach v Goldstein, 229 A.D.2d 64, 66 [1997], lv dismissed 91 N.Y.2d 921 [1998]). Second, based on evidence obtained in 11 Essex's tort action against 7 Essex, Tower now disclaims coverage for the same reason...

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