OVERSEA CHINESE MISSION, plf-ap, v. WELL-COME HOLDINGS, INC. def-res

2563-2564N. OVERSEA CHINESE MISSION, plf-ap, v. WELL-COME HOLDINGS, INC. def-res OVERSEA CHINESE MISSION, plf-res, GUIDE ONE INSURANCE COMPANY, Nonparty Intervenorres, v. WELL-COME HOLDINGS, INC. def-ap, DIAMOND POINT EXCAVATION CORP., def Foley & Mansfield PLLP, New York (James J. Lotz of counsel), for Oversea Chinese Mission, appellant/res, and Guide One Insurance Company, res Quirk and Bakalor, P.C., Garden City (Debra E. Seidman of counsel), for Well-Come Holdings, Inc., respondent/ap Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Gerard Benvenuto of counsel), for Flintlock Construction Services LLC, respondent/ap Order, Supreme Court, New York County (Debra A. James, J.), entered on or about December 12, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff Oversea Chinese Mission's (OCM) motion for a new trial on damages, and order, same court and Justice, entered June 24, 2015, which, to the extent appealed from as limited by the briefs, granted nonparty Guide One Insurance Company's (Guide One) motion to intervene as a plaintiff, unanimously affirmed, without costs.

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2563-2564N. OVERSEA CHINESE MISSION, plf-ap, v. WELL-COME HOLDINGS, INC. def-res OVERSEA CHINESE MISSION, plf-res, GUIDE ONE INSURANCE COMPANY, Nonparty Intervenorres, v. WELL-COME HOLDINGS, INC. def-ap, DIAMOND POINT EXCAVATION CORP., def Foley & Mansfield PLLP, New York (James J. Lotz of counsel), for Oversea Chinese Mission, appellant/res, and Guide One Insurance Company, res Quirk and Bakalor, P.C., Garden City (Debra E. Seidman of counsel), for Well-Come Holdings, Inc., respondent/ap Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Gerard Benvenuto of counsel), for Flintlock Construction Services LLC, respondent/ap Order, Supreme Court, New York County (Debra A. James, J.), entered on or about December 12, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff Oversea Chinese Mission’s (OCM) motion for a new trial on damages, and order, same court and Justice, entered June 24, 2015, which, to the extent appealed from as limited by the briefs, granted nonparty Guide One Insurance Company’s (Guide One) motion to intervene as a plaintiff, unanimously affirmed, without costs.

OCM’s contentions on its appeal are unavailing. The record on appeal is clear that no agreement to prosecute the action on behalf of the insured (OCM) and the insurer (Guide One) was ever produced in discovery; thus, OCM’s reliance on CPLR 1004 is unavailing. Nor was any prejudice suffered due to the court’s grant of a collateral source hearing pursuant to CPLR 4545, as the parties stipulated that OCM was entitled to out-of-pocket expenses of $85,726 from the $1,150,000 jury award, with prejudgment interest from January 1, 2005, and the jury award would have preclusive effect on any subrogation action by the insurer (see State Farm Mut. Auto. Ins. Co. v. Baltz Concrete Constr. Inc., 29 AD3d 777, 778 [2d Dept 2006], citing Allstate Ins. Co. v. Stein, 1 NY3d 416, 417 [2004]].

OVERSEA CHINESE MISSION, plf-ap, v. WELL-COME HOLDINGS, INC. def-res

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