The Iyagehs commenced an action against the third party defendants for damage caused to their property in May of 2002. The third party defendants settled with the Iyagehs. The Iyagehs have now commenced an action against State Farm Fire and Casualty Company (hereinafter State Farm), their insurer, who denied their claim. State Farm in turn commenced the third party action seeking indemnification and contribution. Third-Party defendants move to dismiss the third party action on the ground, inter alia, that the statute of limitations has run on this claim.

Third-Party defendants assert that State Farm's action which was filed in September of 2005 is stale because it is, in essence, a claim for subrogation and as such has the same three year statutory life as does the underlying claim for property damage which accrued when the property damage was sustained in May of 2002. In response, State Farm argues that this is not an action [*2]for subrogation because their right to subrogation was extinguished when the third party defendant voluntarily settled with their insured before State Farm paid out any money on their insured's claim. They argue that since subrogation only exists when insurer has paid the claim and thereby acquires the right to stand in the shoes of its insured, they are not and cannot make a claim to subrogation and are only making a claim that sounds in contribution and indemnification against the eventuality that they may be required to pay their insured's claim in the first-party action. Such claim, third party plaintiff's argue, is not time barred.

The right to indemnification or contribution is derived from the legal relationship between the parties. The right to common law indemnification comes about in a circumstance where an entity is not negligent but is held vicariously liable to a plaintiff by virtue of its status and thereby has the right to seek recovery from the active tortfeasor for any sums it may have been required to pay out. In order to be entitled to contractual indemnification an indemnitee must be the able to point to a written agreement between itself and the indemnitor that unequivocally grants it the right to seek indemnification in the event it is held liable. If State Farm is held liable to the Iyagehs, its liability would be premised upon its contract of insurance with the them rather than upon negligence theories of vicarious liability or joint liability. Moreover the third party defendants have no contractual relationship with State Farm such that they can be deemed to have assumed the responsibility to indemnify State Farm against any loss caused by their alleged negligence. See Seven Sixty Travel, Inc. v. American Motorists Ins. Co., 98 Misc 2d 509(Sup Court, Albany. Co. 1979). Indeed the only possible theory upon which the third party complaint can be premised is subrogation, for theories of contribution or indemnification will not lie under these facts. And State Farm has shown us no case to the contrary.

However, even assuming arguendo the doubtful proposition that a conditional claim for equitable subrogation can be made where, as here, the insurer has not paid its insured's claim, but may be required to do so and the insured has settled with the wrongdoer, compare Federal Ins. Co. v. Arthur Andersen & Co., 75 NY2d 366(1990)(subrogation allowed where insurer reimbursed its insured for part of the loss and insured settled with wrongdoer)with Trans-Resources, Inc. v. Nausch Hogan and Murray, 298 AD2d 27(lst Dept. 2002)( finding no subrogation issue where the insurer did not pay the loss), this third party action must nonetheless be dismissed because it is untimely. Matter of Prudential Property and Casualty Ins. [Bacchus],226 AD2d 384(2d Dept. 1996). See Also Allstate Ins. Co. v. Stein, 1 NY3d 416(2004).

Accordingly, the third party defendants' motion to dismiss the third party action is granted and the third party action is dismissed.

This constitutes the decision and order of the Court.

J.S.C.