Civil Procedure · MBE-tested
Niagara Frontier Transportation Authority, Appellant, v. Vosbeck, Vosbeck, Kendrick & Redinger, Inc., Respondent
236 A.D.2d 842653 N.Y.S.2d 896·New York Supreme Court, Appellate Division·1997·NY
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Opinion
Niagara Frontier Transportation Authority, Appellant, v Vosbeck, Vosbeck, Kendrick & Redinger, Inc., Respondent.
[653 NYS2d 896]
[MAJORITY]
—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted the motion of defendant Vosbeck, Vosbeck, Kendrick & Redinger, Inc. (Vosbeck), for partial summary judgment. Upon our review of the record, we conclude that plaintiff, Niagara Frontier Transportation Authority (NFTA), may not maintain this action against Vosbeck to the extent of the sum of $1,118,836; Encon Underwriting Agency, Inc. (Encon), was subrogated to NFTA’s rights in that amount upon payment under an All Risks Course of Construction insurance policy issued by Encon. Because that portion of the claim has been subrogated and En-con is .the real party in interest to NFTA’s insurer, the collateral source rule is not applicable (see, CPLR 4545 [c]; Kelly v Seager, 163 AD2d 877; Scinta v Kazmierczak, 59 AD2d 313, 316). In light of the foregoing, we do not address the remaining contentions raised on appeal. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Summary Judgment.) Present—Denman, P. J., Lawton, Fallon, Doerr and Balio, JJ.