RISK CONTROL ASSOCIATES INSURANCE GROUP, plf-ap, v. MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.C. def-res

4249N. RISK CONTROL ASSOCIATES INSURANCE GROUP, plf-ap, v. MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.C. def-res — Behman Hambelton, LLP, New York (Kevin H. O'Neill of counsel), for ap — Schenck, Price, Smith & King, LLP, New York (John P. Campbell of counsel), for res — Order, Supreme Court, New York County (Debra A. James, J.), entered July 19, 2016, which, to the extent appealed from, denied plaintiff's motion for leave to amend the pleadings and serve a second amended complaint, unanimously affirmed, with costs.

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4249N. RISK CONTROL ASSOCIATES INSURANCE GROUP, plf-ap, v. MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.C. def-res — Behman Hambelton, LLP, New York (Kevin H. O’Neill of counsel), for ap — Schenck, Price, Smith & King, LLP, New York (John P. Campbell of counsel), for res — Order, Supreme Court, New York County (Debra A. James, J.), entered July 19, 2016, which, to the extent appealed from, denied plaintiff’s motion for leave to amend the pleadings and serve a second amended complaint, unanimously affirmed, with costs.

“Leave to amend pleadings is freely granted, unless the proposed amendment is palpably insufficient or patently devoid of merit. At this stage of the pleadings, plaintiff need only plead allegations from which damages attributable to defendants’ conduct might be reasonably inferred” (Risk Control Assoc. Ins. Group v. Maloof, Lebowitz, Connhan & Oleske, P.C., 127 AD3d 500, 500 [1st Dept 2015] [internal quotation marks and citations omitted]). However, “subrogation is premised on the concept ‘that the party who causes injury or damage should be required to bear the loss by reimbursing the insurer for payments made on behalf of the injured party’” (NYP Holdings, Inc. v. McClier Corp., 65 AD3d 186, 189 [1st Dept 2009]). By plaintiff’s own admission, National Specialty, the insurer that issued the subject insurance policy, was also the party that provided financial resources to pay the settlement at issue in the underlying action, and thus, “plaintiff failed to allege… actual damages” (Risk Control, 127 AD3d at 500), regardless of whether its subrogation claim is pleaded on an equitable or a contractual basis.

RISK CONTROL ASSOCIATES INSURANCE GROUP, plf-ap, v. MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.C. def-res

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