Medical Liability Mutual Insurance v. Schurig

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered September 28, 1993, which granted defendant’s motion for summary judgment, unanimously affirmed, with costs. The same public policy considerations that prohibit an insurer from subrogating against its own insured for a claim arising from the very risk for which the insured was covered (see, North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294-295) necessitate a dismissal of this action, wherein plaintiff insurer seeks to subrogate against its insured’s employee, a nurse, in order to recoup what it paid out in settlement of a medical malpractice action that arose from the same facts as are alleged herein (see, Aetna Cas. & Sur. Co. v Greater N. Y. Mut. Ins. Co., 205 AD2d 433; Fireman’s Ins. Co. v Wheeler, 165 AD2d 141). Concur—Ellerin, J. P., Ross, Williams and Tom, JJ.