
    Kenneth Schiel, Plaintiff, v. Melanis Dickman et al., Defendants.
    District Court of Nassau County, First District,
    August 13, 1970.
    
      Raymond J. MacDonnell for plaintiff. Andrew L. Gisternino for defendants.
   Edward J. Potjlos, J.

This: is a motion by the defendant for leave to serve and file an amended answer which would contain a counterclaim. The argument in opposition is- that where an action is commenced by an insurance company under its subrogation rights pursuant to a policy of collision insurance, a counterclaim will not lie and Potomac Ins. Co. v. Schmedes (63 N. Y. S. 2d 548) is cited in support of the opposition.

The significant difference between the argument and the citation is that the Potomac case does not apply to an action brought under subrogation rights but to an action brought by an insurance company as subrogee.

The summons and complaint in this action are brought solely in the name of the insured and if it were intended that he be a nominal plaintiff only as contemplated by CPLB 3019 (subd. [c]), nowhere in those papers is the defendant apprised of that fact, and hence the defendant must accept the named plaintiff as the real party at interest and has all of the rights of a defendant in an action brought by the person beneficially interested. (See, also, Occidental Ins. Co. v. Herman, 179 Mise. 499.)

The motion for leave to serve and file an amended answer is granted.  