In Hamlet at Willow Cr. Dev. Co., LLC v. Northeast Land Dev. Corp., 64 A.D.3d 85, 105-06, 878 N.Y.S.2d 97 (2d Dept), lv dismissed 13 N.Y.3d 900, 922 N.E.2d 875, 895 N.Y.S.2d 289 (2009) the court found that the plaintiff, a developer of a 177-unit residential development, had "an undeniable interest in the timely completion and approval of the project." (id. at 107), which interest was threatened when the town withheld certificates of occupancy, and stopped work on the project.

Plaintiff responded by paying the town environmental fees and engineering costs, satisfying the town's conditions for continuing work, and bringing a subrogation claim against an excavation contractor.

The court found that the payments were made to protect the developer's interest in the completion of the project.

The third party actually responsible for these fees was the principal on the performance bond, the excavation contractor, who was obligated to pay the town under the bond.

The court found this was sufficient for an equitable subrogation claim (id. at 105-08).