CPLR § 1004 When joinder unnecessary
Augello v Koenig-Rivkin, 2008 NY Slip Op 08690 (App. Div., 2nd)
"CPLR 1004, the exception to the real party in interest rule,
provides that an insured person who has executed a subrogation receipt
or other similar agreement may sue without joining the person for whose
interest the action is brought" (CNA Ins. Co. v Carl R. Cacioppo Elec. Contrs., 206
AD2d 399, 400). While an insurer also has the right to commence an
action on behalf of its insured even where there is a subrogation
agreement between the parties, "[n]either the case law nor the statute
require that the insurance company be substituted as the plaintiff
under such circumstances" (id. at 400; see generally Krieger v Insurance Co. of N. Am., 66 AD2d 1025; Point Tennis Co. v Urban Inds. Corp., 63 AD2d 967).
Here, pursuant to the release and trust agreement (hereinafter the release) executed [*2]by
the plaintiff upon receipt of the underinsured motorist benefits paid
to him by the nonparty-appellant (hereinafter the insurer), the
plaintiff agreed, inter alia, to "hold any moneys received as a result
of settlement or judgment in trust for the [insurer] to be paid to said
[insurer] immediately upon recovery thereof provided that any sum
received in excess of the amount paid by the [insurer] . . . shall be
retained by the [plaintiff]." "The meaning and coverage of a general
release necessarily depends upon the controversy being settled and upon
the purpose for which the release was given. A release may not be read
to cover matters which the parties did not intend to cover" (Gale v Citicorp, 278 AD2d 197; see generally Kaminsky v Gamache, 298 AD2d 361, 361-362).
The purpose of the release in this case was to protect the
insurer's subrogation claim while also protecting the right of the
plaintiff to retain any recovery in excess of the insurer's subrogation
claim. Thus, where, as here, the plaintiff seeks damages in excess of
the insurer's subrogation claim, the release cannot be interpreted to
require the substitutions requested by the insurer (cf. Faraino v Centennial Ins. Co., 103 AD2d 790; Skinner v Klein, 24 AD2d 433, 434).
The bold is mine.