Remington Freight Lines, Inc. v. Guarantee Insurance

In an indemnification action to recover sums paid by the plaintiff’s insurers pursuant to a stipulation of settlement made in consolidated actions to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), [571] dated November 25, 1987, which denied its motion for summary judgment. Ordered that the order is affirmed, with costs. We find, as did the Supreme Court, that triable issues of fact exist as to whether, inter alia, the defendant East Penn Trucking Company can be held vicariously liable for the alleged negligence of the defendant George Harpel. Moreover, the record fails to establish whether the plaintiff is a "real party in interest” to this suit (see, Compton v D’Amore, 101 AD2d 800, 801), and raises questions as to whether the plaintiff’s insurers are improperly seeking subrogation from additional insureds under the subject policies (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465). Accordingly, summary judgment was properly denied (see, Zuckerman v City of New York, 49 NY2d 557). Mangano, P. J., Bracken, Kooper and Harwood, JJ., concur.