| Greenway Mews Realty, L.L.C. v Liberty Ins. Underwriters, Inc. |
| 2025 NYSlipOp 06810 [244 AD3d 483] |
| December 9, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Greenway Mews Realty, L.L.C., Plaintiff, v Liberty Insurance Underwriters, Inc., et al., Defendants. Seneca Insurance Company, Interpleader Defendant-Respondent, and Federal Insurance Company, Interpleader Defendant-Appellant, et al., Interpleader Plaintiff, et al., Interpleader Defendant. Seneca Insurance Company, Interpleader Defendant-Respondent, and Federal Insurance Company, Interpleader Defendant-Appellant, et al., Interpleader Plaintiff, et al., Interpleader Defendant. |
Quirk and Bakalor, P.C., Garden City (Timothy J. Keane of counsel), for appellant.
Saretsky Katz Dranoff Weissman & Maynard, LLP, Elmsford (Barry G. Saretsky of counsel), for respondent.
Equity
- Unjust Enrichment
- Documentary Evidence
- Failure to Show Waiver of Subrogation Rights
Order, Supreme Court, New York (Arthur F. Engoron, J.), entered July 29, 2024, which granted interpleader defendant Seneca Insurance Company's motion to dismiss interpleader defendant Federal Insurance Company's cross-claims against it, unanimously modified, on the law, to deny the motion as to the unjust enrichment cause of action, and otherwise affirmed, without costs.
Seneca's waiver arguments have been raised and addressed in multiple prior actions. Consistent with our prior decisions, Seneca has again failed to "establish as a matter of law that Federal waived its subrogation rights by failing to join Seneca in the lawsuit seeking to recover settlement funds" (Greenway Mews Realty, L.L.C. v Liberty Ins. Underwriters, Inc., 180 AD3d 412, 413 [1st Dept 2020]; see also Greenway Mews Realty, L.L.C. v Liberty Ins. Underwriters Inc., 200 AD3d 519, 520 [1st Dept 2021]; Greenway Mews Realty, L.L.C. v Liberty Ins. Underwriters, Inc., 214 AD3d 411, 413 [1st Dept 2023]). Seneca has failed to produce any new evidence that would warrant a departure from this Court's prior decisions.
Since Seneca failed to establish waiver as a matter of law, the court should not have dismissed the unjust enrichment cause of action. Seneca failed to show that it would not be "against equity and good conscience to permit" Seneca "to retain what is sought to be recovered," namely that bulk of the settlement that Federal funded (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012] [internal quotation marks omitted]; see Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 117 [1st Dept 1990], lv denied 77 NY2d 803 [1991]; see also Fasso v Doerr, 12 NY3d 80, 90-91 [2009]). The documentary evidence produced by Seneca does not establish that Federal explicitly waived its subrogation rights or assigned them, nor does it conclusively refute Federal's assertion that it was unaware that Seneca was trying to recover the money Federal had paid in the settlement until several years later.
The court properly held,however, that the constructive trust cause of action should be dismissed, as there was no confidential or fiduciary relationship between Federal and Seneca (see Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940 [1980]; see also Talansky v Schulman, 2 AD3d 355, 360 [1st Dept 2003]).
We have considered the remaining arguments and find them unavailing. Concur—Webber, J.P., Scarpulla, Rodriguez, Higgitt, Chan, JJ.