Coverage Pointers - Volume IX, No. 20

Dear Coverage Pointers Subscribers:

 

Attached is our regularly scheduled issue of Coverage Pointers  and a Special Supplement discussed below.

 

Glad there was such an interest in New York State trivia; I'll remember that for future issues.

 

We've noticed a number of Coverage Pointers subscribers are attending the PLRB / LIRB Claims Conference in Boston next week.  We have well over 200 attendees signed up for my presentation on Complex Liability Coverage Issues.  We'll be offering an approach to unraveling complex coverage issues, particularly those intertwined with complicated underlying facts, indemnity agreements, contractual promises to provide coverage, etc.  For those who are coming to Boston, the presentation are as follows:

 

Monday, April 14, 2008           3:30-5:00
Sheraton 2 Independence West

 

Wednesday, April 16, 2008      1:30-3:00
Sheraton 2 Back Bay C

 

We also hope to see many of you at the DRI Insurance Coverage and Claims Institute in Chicago on April 9 - 11. 

 

History fan are you?  Have you been watching the HBO series on John Adams?  It is absolutely terrific, even though I know how it comes out at the end.

 

Confession

 

I shall start out with another confession.  I made a mistake in the last issue. It's my first in eight years (and surely, I am not counting).  I placed the smallest city in New York, Sherrill, in Chemung County.  One of our faithful subscribers, Darryl Rahn, Asst. V. P. - Dir. of Liability Claims in the Home Office Claims Department at Utica National Insurance Group, was quick to (and justified in) reorienting me.  Sherrill is located in Oneida County, not Chemung.  Those counties aren't even near each other!  Thanks, Darryl. 

 

Special Supplement Included

 

With irregular regularity, we include an occasional education piece that may provide you with some overall guidance in the insurance coverage arena.  As an alternative, if you prefer, you may print out that attachment separately and if trimmed properly, it can serve as the liner for a bird cage.

 

 In this week's edition, we provide you with an article we've entitled:

 

Ouch. That Hurts!

The Difference between and Intentional Injury Exclusions and Assault Exclusions

 

The injured party has been hit by the insured with a beer bottle.  The bottle is now permanently embedded in his head, and he's now known by the nickname "Molson."  Your insured has timely advised you of the incident, and he is being sued for his conduct.  Do you have an obligation to defend and indemnify?

 

Want more?  Read the article.  Coincidentally, after we penned the article, the Second Department handed down the Kantrow case which is reported in this issue of Coverage Pointers where coverage was denied to the parents of their young son charged who was charged with sexual abuse of a 14-year old girl.  After reading the article, see how a well-articulated exclusion that focuses on conduct is properly considered by an appellate court to deny coverage in that decision.

 

Tax Time

 

Now, for you tax stragglers, remember that April 15^th is tax day, except in Massachusetts, where a local holiday extends the time for filing until sometime in November.  While I'm sure many of our Coverage Pointers subscribers do not recall, when the modern income tax was created, returns were due on March 1^st.   Beginning in 1919, the filing date was extended until March 15^th.  Effective in 1955, Congress changed the date to give the IRS employees a break.  Most returns were filed in the last week and Congress thought that making the date later would encourage earlier filings.  Of course that didn't work.  Still about 20% of returns are filed in the last week before April 15^th.

 

Of course, lest you think that April 15^th is only famous for tax filings, you should know that other events of note occurred on April 15^th.  For example, in 1861, Abraham Lincoln mobilized the Union army and four years later, to the date, he was assassinated. In 1902, former North Korean leader Kim Il-Sung was born and 10 years later, to the date, the Titanic sunk.  There must be a connection there, somewhere.  And of course, on the same day as the tax date was changed to April 15, 1955, Ray Kroc serves his first hamburger at his fledgling McDonald's fast food chain.   (Can it be only an eerie coincidence that Egg McMuffin investor Herb Peterson died at the age of 89 on March 26th?) 

 

Henrietta Hurtsalot v. Iman Insured: Can a Liability Carrier Sue its Defense Counsel for Mishandling a File?

 

The Fourth Department, in the Kumar case reported in the attached issue, considered this very interesting and provocative question.

 

What it is almost impossible to consider this occurring, ("oh sure," our readers mumble) let us consider whether a liability carrier can sue its selected defense counsel for errors in its handling of a defense file.   Here's the set up:

 

Iman Insured is involved in an accident in which she allegedly caused injury to Henrietta Hurtsalot.   Henrietta sues Iman for the personal injuries sustained.  Iman Insured turns the suit papers over to her liability carrier, Dontablame-me Insurance Company for defense.  Dontablame-me assigns the defense of the matter to its favorite outside counsel. Debest, D'Brightest and Loballe, Attorneys-at-Law.  D'Best assigns the matter to its crack associate, Saurie Igoofed. 

 

Saurie places the file on the desk and as fate would have it, within a couple of days, forgets it was there.  The plaintiff, Hurtsalot, takes a default judgment against Insured for an amount in excess of the policy limits.   The plaintiff is then willing to take the policy limits to settle the case and the defense firm recommends payment.  However, Dontablame-me resists.

 

Since Insured is penniless (so what,  you may say, the Czar of Russia was Nicholas), plaintiff is willing to take an assignment of the bad faith case that Iman Insured may have against Dontablame-me Insurance Company in exchange for a promise not to seek the personal assets of Iman Insured.

 

A lawsuit is now commenced by Henrietta Hurtsalot, as assignee of the bad faith claim of Iman Insured against Dontablame-me Insurance Company where the plaintiff seeks to recover not only policy proceeds but also the amount the judgment in excess of the policy limits.  Dontablame-me decides it isn't the carrier's fault that it is facing this lawsuit, but it is because of mistakes committed by Saurie Igoofed and employer Debest, D'Brightest and Loballe. Accordingly, Dontablame-me Insurance Company brings a third party action against its assigned defense counsel, Debest, D'Brightest and Loballe and its associate, Saurie Igoofed. 

 

The law firm moves to dismiss the action commenced by the insurer, claiming that it cannot be sued by the Dontablame-me, because there is no attorney-client relationship that establishes privity.

 

Caught your attention?  Read the summary of the Kumar case and see if you agree with the majority, the dissent, or this writer (who takes a position that differs from both).

 

Peculiar Medical Report

 

Recently, two physicians conducted records reviews on an obese patient.  One suggested that the man fast to lose weight.  The other took a contrary position and recommended a different regimen:

 

Doc Note: I dissent. A fast never prevents a fatness. I diet on cod

 

Besides its odd verbiage, what else makes this report of interest?  Answer below under Diagnostic Solution.

 

Audrey's Angle:

 

I have received a few inquiries of late on how the upstate arbitrators are applying LMK.  I have been looking at various awards from the arbitrators I appear in front of and have provided you with a summary of my findings.  In short, there is not a uniform application of LMK but that is the problem with the decision and the regulation - there is no definition of a claim.

 

I also looked a bit more into the CPLR 2309(c) provision that was the downfall of an insurer in last edition.  I have some more information but am researching it to ascertain if the failure to have the certificate should be fatal.  I will keep you posted.

 

I have to make one marketing plug this edition.  If you have not signed up for DRI's Insurance Coverage and Claims Institute in Chicago from April 9-11 and would like to, let me know.  I am the Vice Chair of the Young Lawyers Subcommittee of the Insurance Law Committee and can help you obtain the information to sign up.  There is a great half day Insurance 101 program on April 9th that provides the basics in insurance coverage. 

 

If you are attending please send me an email so that I can be sure to catch up with you at the meeting.  My subcommittee is hosting a dinner on Wednesday evening at Brasserie Ruhlmann beginning at 8:00 p.m.  You are invited to attend.  Please let me know if you plan on attending and we will ensure to add you to our growing list.  My Subcommittee chair lives in Chicago so I am sure he will have some exciting post dinner activity planned.

 

Audrey Seeley

[email protected]

 

Earl's Pearls

 

We sure hope you're taking the time to read Earl Cantwell's columns.  They are terrific.  This week, he discusses how to challenge New York expert testimony in "Put Plaintiffs and Their Experts into the "Frye" Pan."

 

Mark's Mark

 

Maryland: A Great Place to Find Crabs but Not So Great for Finding Treating Physicians When Trying to Defeat SJ Motions

 

Using an out of state doctor helped sink plaintiff in opposing defendant's motion for summary judgment. Young Hwan Park v. Orellana. There, the Second Department went out of its way to state that the affirmation of the plaintiff's physician in Maryland did not constitute competent evidence because she was not "authorized by law to practice in the state" (CPLR 2106; see Moore v. Edison, 25 A.D.3d 672; Palo v Latt, 270 AD2d 323). Even if we were to be considered, the affirmation did not raise a triable issue of fact, because the plaintiff's Maryland physician failed to set forth the objective tests she relied upon in arriving at her conclusions. Nevertheless, don't let this happen to you and your client. This may be more of an issue downstate with nearby New Jersey and Connecticut, but please make sure your treating doctors are authorized to practice in New York.

 

Mark A. Starosielec, Esq.
E-mail address: [email protected]

 

Diagnostic Solution (to Peculiar Medical Report, above)

Of course, the doctor's analysis  -- Doc Note: I dissent. A fast never prevents a fatness. I diet on cod - was  a palindrome.  It reads the same, forward and backward. Like the famous:  A man, a plan, a canal, Panama or its lesser known cousin:

 

A man, a plan, a canoe, pasta, heros, rajahs, a coloratura, maps, snipe, percale, macaroni, a gag, a banana bag, a tan, a tag, a banana bag again (or a camel), a crepe, pins, Spam, a rut, a Rolo, cash, a jar, sore hats, a peon, a canal - Panama!
 

What do we offer you in this week's edition?  All kinds of lovely and interesting decisions:

 

• Split Court Find Notice by Insured and Injured Party Late, as a Matter of Law
• Carrier's Claim Against Insurance Broker Fails
• SUM Claim Fails Because of Failure to Trigger Coverage, Despite Our Critique of Recent Precedent
• Challenge to Arbitrator's Decision, Based on Bias, Fails.  Heavy Burden Indeed
• Timeliness of Application to Stay Arbitration Based on Service of Arbitration Demand, Not from Letter Indicating Intention
• Policy Properly Canceled; Insured Entitled to Uninsured Motorists Benefits
• Sexual Abuse Exclusions Lead to Denial of Coverage to Parents of Son Who Allegedly Committed Abuse
• Agreement, Not Policy, Compels Defense by Carrier
• Different Versions of Post Accidents Indications of Injuries Lead to Questions of Fact on Late Notice to Insurer
• Can a Liability Carrier, Sued in Bad Faith, Maintain a Third-Party Action Against the Defense Firm it has Hired? 

STAROSIELEC'S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT

Mark Starosielec
[email protected]

 

• Failure to Explain Plaintiff's Injuries were Caused by MVA Leads to SJ
• Court to Litigants: Address ALL Serious Injury Categories Alleged in Lawsuit
• Missing Six Months of Work = Serious Injury Under the 90/180 SI Category
• Just the Facts: Order Denying SJ is Reversed as Plaintiff Fails to Raise Issue of Fact
• Age-Related Degenerative Changes & Gap in Treatment Leads A.D. to Affirm MSJ Range of Motion is All the Rage
• Reversal of Fortune: Plaintiff's Doctor's Reliance on Unsworn Reports Dooms Lawsuit
• Quick And To the Point: Whether Plaintiff Suffered a Serious Injury is NOT the How to NOT Raise a Triable Issue of Fact.Let Me Count the Ways
• Plaintiff's Doctors Inconsistent Conclusions Leads to Summary Judgment
• Unaffirmed and Unsworn Medical Reports Leads to Summary Judgment against Plaintiff
• Soccer Mom-Plaintiff Did Raise a Triable Issue of Fact, Thanks to Defendant Doc's Report
• Ask and You Shall Receive: Defendant's Appeal Successful as Plaintiff Relied on MD MD
• Green Does NOT Mean Go For Left-Turning Defendant: Plaintiff's Case Continues.
• Vertigo Not Enough to Keep Plaintiff's Case Going
• Without Personal Knowledge of Prior Treatment & Cessation of Treatment,
• Plaintiff's Chiropractor's Affidavit Remains Insufficient
• Court to Litigants: Address Plaintiff's Injuries or Go Home!
• Double Whammy: Plaintiff Failed to Proffer New Facts or Reasonable Delay Justification
• Upon Further Review, Plaintiff Did Raise a Triable Issue of Fact in Opposition to D's MSJ
• Win Some, Lose Some: Plaintiff-Husband Survives SJ but Plaintiff-Wife Does Not

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

The reporting of No-Fault arbitration awards is not at the same level of reported case law, meaning there is no one source to turn to for comprehensive research of arbitration awards.  We encourage you to submit to us, in a PDF format, at [email protected], any recent no-fault arbitration awards, especially Master Arbitration awards, that address interesting no-fault issues. 

 

What's the Angle

 

1.                  LMK Application Upstate

2.                  CPLR §2309(c)

 

Arbitration

• Lost Wages Awarded As Applicant Was Seeking Employment at Time of Accident
• Sporadic Treatment and Disability Based Upon Subjective Pain Insufficient to Support Lost Wage Claim

Litigation

• Rule Reaffirmed that Medical Rationale Not Required Being In Denial and Nurse Review Not Per Se Invalid Basis for Denial
• Discovery on Fraudulent Incorporation Granted and Note Of Issue Struck
• I Checked the Independent Contractor Box in Error 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

• Carrier Free to Pursue a Subrogation Action Against its Additional Insured Where the Denial of Coverage was Appropriate. 
• Failure to Establish that Insured's Loss DID NOT Arise from Vandalism Resulted in Denial of Summary Judgment

We love your feedback, so keep it coming.

 

Dan

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Audrey A. Seeley
Steven E. Peiper

Fire, First-Party and Subrogation Team
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge
Mark Starosielec

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
Dan D. Kohane
Scott M. Duquin

Index to Special Columns

 

Starosielec’s Serious Side of “Serious Injury”

 Audrey’s Angles on No Fault

Peiper on Property
Earl’s Pearls

Across Borders

 

4/2/08              Tower Insurance Company of New York  v. Lin Hsin Long Co.
Appellate Division, First Department
Split Court Find Notice by Insured and Injured Party Late, as a Matter of Law
This is a good read, both the majority and the dissent.  With a 3-2 decision, and a final determination on coverage, it may reach the Court of Appeals for review.

Accident occurs in a tavern and injured party is taken out in a stretcher.  Insured fails to give notice to its carrier and all five judges agree that there was no reasonable excuse not to do so.  Its notice was late.

 

However, there is an excellent debate, between the majority and the dissent, as to whether the injured party, given a separate right under the Insurance Law to receive notice, acted reasonably.  The majority held that the injured party did not do enough.  The injured party did write to the bar and “suggest” it notify its carrier and did write to the State Liquor Authority and ask for the licensee’s name. The majority noted that the injured party did not ask the bar or the State Liquor Authority for the name of the insurer.   The dissent thought that the injured party’s conduct was enough to, at least, raise a question of fact as to the reasonableness of its conduct.  It’s a good read for those who follow late notice cases.

Editor’s Note:  Attaboy Max.

 

 

4/3/08              Continental Casualty Co., v. AON Risk Services Companies, Inc.,
Appellate Division, First Department
Carrier’s Claim Against Insurance Broker Fails
Continental alleged that broker AON failed to deliver to its insured the terms and conditions of the policy.  However, there was insufficient proof to establish that Continental had entrusted that responsibility to AON or that AON had the discretionary responsibility to do so or otherwise had superior knowledge to give rise to a fiduciary duty.

4/1/08              In the Matter of Allstate Insurance Company v. Rivera
Appellate Division, Second Department
SUM Claim Fails Because of Failure to Trigger Coverage, Despite Our Critique of Recent Precedent
On July 15, 2005, Nydia Rivera, Lisa Rivera, Nadine Valoy, Charisse Mercado, and Sasha Quintanilla (hereinafter the appellants) were passengers in an automobile owned and operated by Petra Mercado (hereinafter the Mercado vehicle), when it was involved in an accident with the Rodriguez car. The Mercado vehicle was insured by Allstate, Rodriguez by GMAC Insurance..

Under the Allstate policy, the limits for both third-party bodily injury and for the supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) were in the amount of $25,000 for each person and $50,000 for each accident, the same limits as in the GMAC policy. GMAC had a 25/50 liability policy as well. GMAC paid the sum of $25,000 to Mercado and the sum of $5,000 to each of the five appellants, thereby exhausting the $50,000 per-accident limit under the GMAC policy. The appellants thereafter sought additional benefits under the SUM endorsement of Mercado's Allstate policy. 

In accordance with 11 NYCRR 60-2.3(f), the SUM endorsement of Mercado's Allstate policy provides, in pertinent part, that "[t]he term uninsured motor vehicle' means a motor vehicle that, through its ownership, maintenance or use, results in bodily injury to an insured, and for which . . . there is a bodily injury liability insurance coverage . . . applicable to such motor vehicle at the time of the accident, but . . . the amount of such insurance coverage . . . is less than the third-party bodily injury liability limit of this policy . . . or . . . the amount of such insurance coverage . . . has been reduced, by payments to other persons injured in the accident, to an amount less than the third-party bodily injury liability limit of this policy."

The Court held that the appellants were not entitled to underinsurance benefits because the bodily injury liability insurance coverage provided by the GMAC policy was equal to, and thus not "less than," the third-party bodily injury liability limit of the Allstate policy.

The court was right here to consider whether there was a trigger of coverage.  But the court determined, as did the Second Department a few months earlier in Matter of Clarendon v. Nunez, that payments to occupants of the Mercado vehicle are not payments to “others.” Accordingly, the court concluded that the SUM coverage did not trigger.

Editor’s Note:  When we review Nunez in our February 8^th issue we disagreed with the holding and stand by our position.  We said then, and we say again:

Frankly, we think this case is just wrongly decided.  The court lumps the plaintiffs’ together and should have considered each claim separately. 

The mandatory language prescribed in the regulation provides:

(c) Uninsured Motor Vehicle. The term "uninsured motor vehicle" means a motor vehicle that, through its ownership, maintenance or use, results in bodily injury to an insured, and for which:

* * *

(3) there is a bodily injury liability insurance coverage or bond applicable to such motor vehicle at the time of the accident, but;

* * *

(ii) the amount of such insurance coverage or bond has been reduced, by payments to other persons injured in the accident, to an amount less than the third-party bodily injury liability limit of this policy …

I will stand corrected if I receive a valid argument telling me that I’ve lost my mind.

4/1/08              In the Matter of Deborah Balis v. Chubb Group of Insurance Companies

Appellate Division, First Department

Challenge to Arbitrator’s Decision, Based on Bias, Fails.  Heavy Burden Indeed
The petitioner failed to meet her burden of proof by clear and convincing evidence that any impropriety or misconduct of the arbitrator prejudiced her rights or the integrity of the arbitration process or award.

 

3/27/08            In re State Farm Mutual Automobile Insurance Company v. Scott
Appellate Division, First Department
Timeliness of Application to Stay Arbitration Based on Service of Arbitration Demand, Not from Letter Indicating Intention

The 20-day time to move to stay uninsured motorists arbitration begins to run when service is made on insurer, not when petition writes a letter indicating his intention to do so.  A letter is not a demand for arbitration.

 

3/25/08            In the Matter of Mercury Insurance Group v. Ortiz

Appellate Division, Second Department
Policy Properly Canceled; Insured Entitled to Uninsured Motorists Benefits
In a framed issue hearing following an application to permanently stay arbitration, Mercury Insurance Company claimed that State Farm had not properly canceled policy.  “Wrongo,” sayeth the Appellate Division.  The Court held that State Farm demonstrated that it followed the strict Vehicle & Traffic Law rules and properly canceled its policy.

 

3/25/08            Kantrow v. Security Mutual Insurance Company
Appellate Division, Second Department
Sexual Abuse Exclusions Lead to Denial of Coverage to Parents of Son Who Allegedly Committed Abuse
A minor claimed that she was "physically detained and sexually assaulted" in her own home on May 7, 2005, by the minor son of the plaintiffs in this action, the Kantrows   The minor son was not sued, only the parents, and the claim was negligent supervision of their son “who the Kantrow’s knew had a predisposition to commit sexual acts” and in failing to prevent the occurrence. Security Mutual, their homeowners insurer, denied coverage alleging that the incident was not an accident and because the injuries resulting from the alleged sexual abuse and child abuse committed by the Kantrows' son was specifically excluded by the policy.

 

The exclusion removed coverage for "bodily injury . . . caused intentionally by or at the direction of any insured." In the underlying action, all of the injuries allegedly sustained by the infant plaintiff and her mother are alleged to have resulted solely from the intentional sexual assault of the infant plaintiff by the Kantrows' son, who is an "insured" as defined by the policy. Further, other exclusions specifically exclude coverage for child abuse or sexual abuse, with such exclusions deemed to apply regardless of whether claims are made directly, indirectly, or derivatively as sounding in negligence. Thus, despite the fact that the underlying complaint couches its allegations against the Kantrows in negligence by asserting that the Kantrows permitted or failed to stop their son's conduct, coverage is excluded, since the gravamen of the underlying action seeks to hold the Kantrows liable for the injuries resulting from their son's intentional acts.

3/25/08            Wronka v. GEM Community Management
Appellate Division, Second Department
Agreement, Not Policy, Compels Defense by Carrier
The indemnity action against the Farm Family insured snow plow contractor was dismissed, so the insurer’s policy did not require it to defend or indemnify property owner and manager.  However, agreement between counsel to share in costs of defense is separately enforceable.

The plaintiff fell on a walkway owned by Hillside Village Condo Association (Hillside) and managed by GEM. Both were sued and both commenced a third-party action against Keller, the snow plow contractor under an indemnity agreement.  Keller’s carrier, Farm Family was also sued and defense costs were sought.

Since the action against Keller was dismissed, it is clear that the defense costs did not arise out of a covered accident and thus the Farm Family cannot be ordered to pay under its policy.  However, Farm Family had agreed to share in the costs of the main action so a claim against them based on that agreement can be maintained. Exchange of correspondence between counsel was sufficient to constitute an enforceable stipulation.

3/25/08            Surgical Sock Shop II, Inc. v. U.S. Underwriters Insurance Company
Appellate Division, Second Department
Different Versions of Post Accidents Indications of Injuries Lead to Questions of Fact on Late Notice to Insurer

On December 11, 2002, Razla, who was pregnant, fell on a staircase leading down to the premises leased to Surgical and owned by 59 Realty, Inc. (“Realty”)..  Surgical learned of the accident immediately. Razla left the scene on her own and Surgical did not notify U.S. Underwriters (“US”), its carrier. On March 3, 2003, Razla’s lawyer sent Surgical a letter of representation and a week later, Surgical turned the letter over to it insurance agency. Nine days later, on March 19, 2003, the agent faxed the documents, and a notice of occurrence, to US. On April 11^th and then again, on May 16^th, U.S. denied coverage based on late notice of the incident. 

The Appellate Division found that there was a question of fact as to whether the delay in reporting the matter to US was reasonable.  An affidavit of a Surgical employee indicated that when she heard about the accident and asked Razla if she needed an ambulance, Razla indicated that she was all right but remained seated. After Posner brought her some water, she again stated she was all right, and after several minutes got up without assistance and left without entering the plaintiff's premises. Razla testified at her deposition in the underlying personal injury action to a different factual scenario as to what happened. She claimed that after she fell she screamed "I am dying," "my baby is dead," and "help me," but that the women who came out of the plaintiff's premises did not want to touch her because of her condition, and that she was unable to move for 30 or 40 minutes.

 

3/21/08            Kumar, as Assignees of Tisack v. Am. Transit Ins. Co and Hiscock & Barclay

Appellate Division, Fourth Department
Can a Liability Carrier, Sued in Bad Faith, Maintain a Third-Party Action Against the Defense Firm it has Hired?
Tisack was the American Transit insured. When sued by Kumar, American hired Hiscock to defend Tisack.  It appears that Hiscock failed to appear and defend the insured and a judgment was entered against Tisack. There was also a claim, it appears, that the carrier failed to settle the claim within the policy limits.  Tisack considered the acts of American Transit to be in bad faith and assigned the bad faith claim to Kumar, likely in exchange for a promise not to enforce the judgment.

Kumar, as assignee of the bad faith claim, then sued American Transit.  The insurer then commenced a third-party action against Hiscock claiming that if American Transit was in bad faith, Hiscock’s negligence was responsible.  Hiscock moved to dismiss the third-party claim and the lower court agreed that the third party action by the carrier against the defense counsel could not stand.  An appeal was taken to the Fourth Department

The Hiscock attorneys argued successfully, that American Transit was not in privity with the law firm.  In support of that holding, the court cited to Federal Ins. Co. v North Am. Specialty Ins. Co., a 2007 First Department case.  In that case, under similar facts, the First Department held that there is no privity – that is – no duty, running from the defense counsel to the liability carrier that has hired the law firm. According to the First Department (and now the Fourth Department), the only duty that the defense counsel has is to the insured, its client.  We would note, that the First Department’s decision in Federal Ins. Co. cited, for that proposition, a case that did not quite go that far.  The First Department cited Feliberty v. Damon, 72 NY2d 112 (1988).  That court held that when counsel is assigned to defend an insured, "the paramount interest independent counsel represents is that of the insured, not the insurer."  It did not hold that there is NO duty.

In any event, after holding that American Transit was not owed a duty by the defense firm it hired, the Fourth Department nevertheless reinstated the complaint against the law firm on the principle of equitable subrogation.

Subrogation is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss. The third-party complaint alleges that the loss sustained by American's insured resulted from the malpractice of the Hiscock attorneys, specifically their failure to appear and defend the insured.  The court determined that the complaint alleges sufficient facts to withstand the motion to dismiss, inasmuch as it states a cause of action for equitable subrogation.

In a considered dissent by Justice Peradotto, she agreed with the majority that American Transit was not in strict privity with Hiscock.  She also would have held that American Transit was not in “near privity” with Hiscock, a concept the majority did not reach.  The dissent noted that a relationship of near privity may . . . be sufficient to sustain a legal malpractice claim" only in cases where there is negligent misrepresentation here, there was no proof that Hiscock attorneys made negligent misrepresentations upon which American Transit relied.   But Justice Peradotto disagreed with the majority’s holding that a claim for equitable subrogation could be maintained.  In the dissent’s view,  the majority essentially is asserting the existence of a cause of action for legal malpractice based on a theory of equitable subrogation and the third party complaint submitted by American in opposition to the motion do not contain legally sufficient averments supporting such a cause of action based on that theory.   

Justice Peradotto further argued that the claim against American Transit was based on its independent conduct, its failure to settle the case within the policy limits.  American Transit cannot be vicariously liable for the negligence of its hired defense counsel.

Editor’s Note:  This is a fascinating and very interesting decision and dissent.  From this writer’s perspective, I would take a third approach.  First of all, I agree with the dissent’s view that the conduct by which the carrier is charged is its own.  IF it is liable for bad faith, it is liable for its own conduct, not the conduct of its defense counsel and therefore, cannot be in a position to claim equitable subrogation.

However, we disagree with both the majority and the dissent’s holding that there is no privity between the law firm and the carrier. We know of no compelling authority in New York holding that there is no attorney-client relationship between the liability carrier and the defense counsel.  We believe there is.  We are surely familiar with the many cases that have held that where there is a conflict between the interest of the insurer and the insured, the attorney hired by the carrier must take the side of the insured, its primary client. That was the point the Court of Appeals was making in Filiberty.   See also: Managed Litigation and the Professional Obligations of Insurance Defense Lawyers, 51 Syracuse L. Rev. 1, where author Susan Randall discusses the tripartite relationship this way:

Case law in most jurisdictions holds that the status of the insurance company as client or non-client turns on the presence or absence of conflicts of interest. In general, an actual or potential conflict of interest typically created by a coverage dispute precludes joint representation. Some commentators argue that the potential for conflicts of interest in insurance defense renders dual representation impossible or problematic in every case, but the position has only very limited support in the case law… In the absence of a coverage issue, the insurer is a co-client. As the relative interests of the insurance company and the insured in litigation vary, the insurer's status as co-client or non-client third-party payor varies accordingly. If the interests of insurer and insured converge sufficiently, the insurer is a co-client; if the interests diverge sufficiently, the insurer is merely a third-party payor.

 

STAROSIELEC’S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT

Mark Starosielec
[email protected]

 

4/1/08             Becerril v. Sol Cab Company

Appellate Division, First Department          

Failure to Explain Plaintiff’s Injuries were Caused by MVA Leads to SJ

The Appellate Division reversed a lower court order which had denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury. On appeal, defendants established a prima facie entitlement by submitting the affirmed report of a radiologist who opined that plaintiff’s MRI films revealed degenerative disc disease, and no evidence of post-traumatic injury to the disc structures.  In opposition, plaintiffs failed to raise a triable issue of fact. Although plaintiff submitted an affirmed report from his treating chiropractor, no adequate explanation was provided that plaintiff’s injuries were caused by the subject accident (see Style v Joseph, 32 AD3d 212, 215 [2006]). Notably, plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident.

 

4/1/08              Breland v. Karnak Corp.

Appellate Division, Second Department     

Court to Litigants: Address ALL Serious Injury Categories Alleged in Lawsuit

 

Addressing some serious injury categories but ignoring others cost defendants summary judgment. Plaintiff had appealed an order which granted the defendants' motion for summary judgment dismissing the complaint. The Appellate Division modified the order as defendant failed to address plaintiff’s serious injury claim under the 90/180 day category.

The defendants made a prima facie showing that the plaintiff did not sustain, a “permanent loss of use of a body organ, member, function or system [, a] permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system” within the meaning of Insurance Law § 5102(d). However, inasmuch as the defendants failed to satisfy their prima facie burden with respect to the 90/180 day branch of their motion, it is unnecessary to consider whether the plaintiff’s papers were sufficient to raise a triable issue of fact in opposition.

04/01/08          Colacino v. Andrews

Appellate Division, Second Department

Missing Six Months of Work = Serious Injury Under the 90/180 SI Category

In a similar case to Breland, plaintiff successfully appealed a lower court order that granted the defendants' motion for summary judgment. On appeal, the order was reversed as the defendants failed to meet their prima facie burden. In support of their motion, the defendants relied on the reports of the injured plaintiff’s treating physicians, which noted the existence of limitations in the range of motion in her lumbar and cervical spine. However, the defendants failed to adequately address the injured plaintiff’s claim, set forth in her VBOP, that, as a result of the accident, she was unable to perform substantially all of the material acts which constituted her usual and customary daily activities for a period of 90 days during the 180 days immediately following the accident. The accident occurred on March 7, 2004. The injured plaintiff was incapacitated from her employment for a period of 219 days as a result of the accident, and the defendants’ examining neurologist noted in his report that she missed six months of work.

 

04/01/08          Mager v. Cooney

Appellate Division, Second Department

Just the Facts: Order Denying SJ is Reversed as Plaintiff Fails to Raise Issue of Fact

While some defendants improperly sought to appeal a lower court order (see CPLR 5511), the fact remains the plaintiff failed to raise a triable issue of fact. The medical evidence which the defendants submitted in support of their respective motions for summary judgment dismissing the complaint established a prima facie case that the plaintiff did not sustain a serious injury. Plaintiff failed to raise a triable issue of fact.

 

3/25/08            Cruz v. Calderone

Appellate Division, Second Department

Age-Related Degenerative Changes & Gap in Treatment Leads A.D. to Affirm MSJ Order                  A number of reasons led the Appellate Division to affirm a lower court order which had granted the defendant’s motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury. The chief reasons appear to be age and failure to adequately explain a gap in treatment.

While the defendant met her prima facie burden, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs’ treating chiropractor averred that the plaintiffs had sustained injuries and limitations to their cervical and/or lumbar spines, he failed to address the findings of the defendant’s examining radiologist, who concluded that Jose Cruz suffered from age-related degenerative changes to his cervical spine, and that Any Cruz suffered from age related degenerative changes to her lumbar spine. Also, neither the chiropractor, nor the plaintiffs explained the lengthy gap in their respective treatments which is evident from the record.

3/25/08            Cruz v. Rosenbaum

Appellate Division, Second Department

Range of Motion is All the Rage

Plaintiffs, who were rear-ended by defendants, successfully appealed a lower court order which had granted defendants’ summary judgment motion. The Appellate Division held that the movants failed to meet their prima facie burden.

 

In their affirmed reports, Rosenbaum’s examining orthopedic surgeon and neurologist failed to compare their findings with regard to Cruz’s range of motion in various operations of the cervical and lumbosacral regions of the spine and in the right and left shoulders to what is considered the normal range of motion for those operations. In support of his motion as it related to Sadykov, the other plaintiff, Rosenbaum submitted, a report prepared by Sadykov’s medical expert, in which he indicated that, when he last performed range of motion testing on Sadykov’s right knee, the knee ranged from 0% to 110%, whereas the norm is 0% to 145%.

 

3/25/08            Doherty v. Ajaib

Appellate Division, Second Department

Reversal of Fortune: Plaintiff’s Doctor’s Reliance on Unsworn Reports Dooms Lawsuit

Unsworn reports, self-serving affidavits and failure to adequately explain a gap in treatment led the Appellate Division to reverse a lower court order which had denied defendants’ motion for summary judgment seeking dismissal the complaint.

The defendants met their prima facie burden by showing that the plaintiff did not sustain a serious injury. In opposition, the plaintiff failed to raise a triable issue of fact. The report of his treating physician was without any probative value since his conclusions relied upon the unsworn medical reports of others. Further, the plaintiff’s self-serving affidavit was insufficient. Finally, neither the plaintiff nor his treating physician adequately explained the discontinuance of the plaintiff’s treatment.

 

3/25/08            Freeman v. Prince Leasing Corp.

Appellate Division, First Department
Quick And To the Point: Whether Plaintiff Suffered a Serious Injury is NOT the Issue                    In the briefest of opinions, the Appellate Division considered an appeal from a lower court order, which denied the cross motion of defendants to reargue denial of their motion for summary judgment dismissing the complaint. That appeal was unanimously dismissed, without costs, as taken from a nonappealable paper.  The Appellate Division held the issue that plaintiff failed to establish she had suffered a serious injury is not properly before the Court. No appeal lies from denial of a motion for reargument (see Trexler v Kahanovitz, 41 AD3d 161, 162 [2007]).

 

3/25/08            Laurent v. McIntosh

Appellate Division, Second Department

How to NOT Raise a Triable Issue of Fact…Let Me Count the Ways

Plaintiff’s counsel gave a clinic on how not to defeat a summary judgment motion as the Appellate Division reversed a lower court order which had denied defendant’s motion. On appeal, defendant satisfied his prima facie burden.

In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s examining physician was without any probative value since she relied on the unsworn medical reports of others in arriving at her conclusions. The plaintiff’s examining physician failed to address plaintiff’s prior accidents in which he injured, among other areas, his right knee and lumbar spine. The plaintiff’s MRI reports were unaffirmed and therefore without any probative value. The plaintiff’s affidavit, by itself, was insufficient to raise a triable issue of fact. Moreover, neither the plaintiff, nor his examining physician, adequately explained the lengthy time between the date he stopped treatment in 2003, a year after the subject accident, and his recent examination in April 2007.

3/25/08            Piperis v. Wan

Appellate Division, Second Department

Plaintiff’s Doctors Inconsistent Conclusions Leads to Summary Judgment
Multiple defendants successfully appealed a lower court order which had denied their motion for summary judgment. The defendants satisfied their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

 

However, the plaintiff failed to raise a triable issue of fact in opposition. The plaintiff’s hospital records were without any probative value since they were uncertified. The plaintiff did not see Sheila Horn, his treating osteopath, until July 1, 2005, two weeks after the accident. Her report of the examination at that time, while reflecting a significant limitation in certain of the plaintiff’s ranges of motion, failed to set forth the objective tests that were used to reach that result. Horn’s report of her examination of the plaintiff on September 9, 2005, reflects however, that the plaintiff’s ranges of motion were virtually normal. In light of this, the unexplained determination by the plaintiff’s examining physician, David Delman, that the subject accident caused the injuries and limitations he noted in the plaintiff's cervical spine, lumbar spine, and left knee on February 28, 2007, was speculative and conclusory, and therefore insufficient to raise a triable issue of fact.

 

3/18/08            Hargrove v. New York City Tr. Auth.

Appellate Division, Second Department
Unaffirmed and Unsworn Medical Reports Leads to Summary Judgment against Plaintiff
Here, the plaintiff appeals from an order which granted the motion of the defendants for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Appellate Division held the lower court properly determined that the defendants satisfied their prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on various unaffirmed and unsworn medical reports, all of which were without any probative value. The plaintiff’s MRI reports merely showed that as of August 2004 the plaintiff had, among other things, a bulging disc at L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration.

 

3/18/08            Newberger v. Hirsch

Appellate Division, Second Department
Soccer Mom-Plaintiff Did Raise a Triable Issue of Fact, Thanks to Defendant Doc’s Report

Plaintiff herself was an unlikely beneficiary of defendant’s orthopedic expert’s report when the Appellate Division held the report raise a triable issue of fact regarding plaintiff’s injuries.  As such, she successfully appealed a lower court order which had granted the motion of the defendant for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

The plaintiff was operating a minivan in which her four minor children were passengers, when it was struck by a second motor vehicle. The medical evidence failed to establish, prima facie, that she did not sustain a serious injury. The affirmed medical report prepared by the orthopedic expert raised a triable issue of fact as to whether she sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102[d]).

3/18/08            Young Hwan Park v. Orellana

Appellate Division, Second Department
Ask and You Shall Receive: Defendant’s Appeal Successful as Plaintiff Relied on MD Md While plaintiff failed to raise a triable issue of fact, using an out of state doctor did not help plaintiff either in opposing defendant’s motion for summary judgment.  The lower court had denied defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury.

On appeal, the defendant made a prima facie showing. In opposition, the evidence submitted by the plaintiff failed to raise a triable issue of fact. Plaintiff’s medical reports were not based on a recent examination of the plaintiff. Additionally, although the defendant failed to raise the argument, the affirmation of the plaintiff’s physician in Maryland did not constitute competent evidence because she was not “authorized by law to practice in the state” (CPLR 2106; see Moore v Edison, 25 AD3d 672; Palo v Latt, 270 AD2d 323). Even if we were to be considered, the affirmation did not raise a triable issue of fact, because the plaintiff’s Maryland physician failed to set forth the objective tests she relied upon in arriving at her conclusions.

3/13/08            Griffin v. Pennoyer

Appellate Division, First Department

Green Does NOT Mean Go For Left-Turning Defendant: Plaintiff’s Case Continues…

While early, plaintiff’s pre-discovery motion for partial summary judgment was not, under the circumstances, premature since defendant failed to demonstrate that facts essential to justify opposition to the motion may exist but could not be stated (see CPLR 3212[f]). As such, the Appellate Division affirmed the lower court order granting partial summary judgment for plaintiff.

 

In support of her motion, plaintiff submitted evidence in admissible form, including her affidavit and a police report demonstrating that defendant made an abrupt left-hand turn into the path of plaintiff's vehicle, which was passing through an intersection and that plaintiff was free from any negligence. This evidence, which demonstrated that defendant violated VTL § 1141, was sufficient to establish plaintiff’s entitlement to judgment on the issue of which driver was responsible for the accident. In opposition, defendant failed to raise a triable issue of fact. Defendant’s averment that she had a green light in her favor when she attempted to make the left-hand turn did not undercut plaintiff’s assertion that she had a green light. Regardless of the color of the light in defendant’s direction, plaintiff had the right of way.

 

3/13/08            Saleh v. Bryant

Appellate Division, Third Department

Vertigo Not Enough to Keep Plaintiff’s Case Going

For a variety of reasons, the Appellate Division affirmed a lower court order which had granted defendant’s motion for summary judgment dismissing the complaint. Following a motor vehicle accident, the plaintiff sued defendant claiming she suffered from, inter alia, “positional vertigo and exacerbation of bilateral knee pain…”

In support of her motion, defendant submitted medical records concerning plaintiff’s treatment both before and after the accident. When plaintiff was taken to the ER, following the accident, she was diagnosed with only a facial contusion. The diagnostic tests did not reveal any fractures of plaintiff's spine or shoulder.

The medical records show plaintiff also experienced vertigo following the accident which she first mentioned during a follow-up visit to the hospital. This was a recurrence as plaintiff had been previously diagnosed with vertigo in November 2003. Notably, during her visit to an otolaryngologist in February 2004, plaintiff reported that the episodes lasted less than one minute and usually occurred while she was lying down or looking up.

The Appellate Division held the plaintiff’s injuries did not fall into the permanent loss of use, permanent consequential limitation or significant limitation categories of serious injury set forth in Insurance Law § 5102 (d). As plaintiff failed to clearly delineate the scope and duration of the usual and customary tasks she was allegedly unable to perform following the accident during her deposition, the requirements of the 90/180-day category were also not satisfied. Consequently, the burden shifted to plaintiff who was unable to raise a triable issue of fact.

3/11/08            Cadena v. Espinal

Appellate Division, Second Department

Without Personal Knowledge of Prior Treatment & Cessation of Treatment,

Plaintiff’s Chiropractor’s Affidavit Remains Insufficient

Here, the plaintiff unsuccessfully appealed a lower court order which had granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The defendants established their prima facie entitlement to judgment. In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff’s treating chiropractor failed to establish that he had personal knowledge of the plaintiff’s condition prior to the alleged accident or of the reasons that caused the plaintiff to discontinue treatment after five months. In the absence of such knowledge, the chiropractor’s affidavit was insufficient to explain the cessation of treatment, or to address the findings of the defendants’ examining radiologist.

3/11/08            Coleman v. Shangri-La Taxi, Inc.

Appellate Division, Second Department

Court to Litigants: Address Plaintiff’s Injuries or Go Home!

Failing to address plaintiff’s alleged injuries cost defendants any chance of success on its motion for summary judgment. As such, their appeal from the lower court order, which denied their motion for summary judgment, was unsuccessful.  The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants failed to even address the plaintiff’s allegation that she suffered a left shoulder injury as a result of the subject accident.

 

3/11/08            Dinten-Quiros v. Brown

Appellate Division, Second Department

Double Whammy: Plaintiff Failed to Proffer New Facts or Reasonable Delay Justification

Plaintiff was unsuccessful in her appeal of an order that denied that branch of her motion which was for leave to renew her opposition to the defendant’s prior motion for summary judgment which had been granted in an order by the lower court. Plaintiff was required to proffer both new facts not presented on the prior motion that would warrant denial of the defendant’s motion for summary judgment dismissing the complaint, and a reasonable justification for the failure to have presented such facts at that time (see CPLR 2221[e][2],[3]; Madison v Tahir, 45 AD3d 744; St. Claire v Gaskin, 295 AD2d 336, 337). Here, the plaintiff did not provide a reasonable justification for her failure to proffer the alleged new facts in opposition to the defendant’s prior motion. Further, the alleged new facts would not have warranted denial of the defendant’s motion.

 

3/11/08            Edriste v. Morales

Appellate Division, Second Department

Upon Further Review, Plaintiff Did Raise a Triable Issue of Fact in Opposition to D’s MSJ

On appeal, the defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. However, the Appellate Division held the plaintiff raised a triable issue of fact through the submission of an affirmed MRI report finding a herniated disc in her lumbar spine and the affirmed report of her examining physician, who averred that her cervical and lumbar spine ROM were diminished on all planes as quantified in the report.

 

3/11/08            O'Shea v. Johnson

Appellate Division, Second Department
Win Some, Lose Some: Plaintiff-Husband Survives SJ but Plaintiff-Wife Does Not
Husband and wife plaintiffs received different outcomes following defendant’s appeal of a lower court order which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury. The plaintiff Thomas J. O’Shea was operating a motor vehicle in which his wife, the plaintiff Edith M. O’Shea, was a passenger, when the vehicle was rear-ended. The Appellate Division modified the order by granting summary judgment dismissing the complaint as against the plaintiff Edith M. O’Shea. Plaintiff Thomas J. O'Shea lawsuit continues.

The affirmed medical report prepared by Dr. Loren E. Rosenthal, a neurologist, which the defendant submitted in support of his motion insofar as it concerned Mr. O’Shea, failed to establish, prima facie, that he did not sustain a serious injury. Indeed, the report actually identified a triable issue of fact as to whether Mr. O’Shea exhibited significant limitations in cervical range of motion as a result of the accident. The affirmed medical report prepared by Dr. Arnold Goran, which was submitted in opposition to the motion insofar as it concerned Mrs. O’Shea, failed to raise a triable issue of fact. Dr. Goran found that she had full ROM when he first examined her two months after the accident, and again almost six months after the accident.

 

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

The reporting of No-Fault arbitration awards is not at the same level of reported case law, meaning there is no one source to turn to for comprehensive research of arbitration awards.  We encourage you to submit to us, in a PDF format, at [email protected], any recent no-fault arbitration awards, especially Master Arbitration awards, that address interesting no-fault issues. 

 

What’s the Angle

 

I have two updates for you in no-fault.  The first is how are the Upstate Arbitrators applying LMK.  The second is a follow up on the CPLR 2309(c) issue.

 

1.         LMK Application Upstate

 

There is some uniform application of LMK but not quite Upstate.  The arbitration awards are uniform in that LMK is applied and attorney’s fees are awarded for each claim up to the limitations of 11 NYCRR §65-4.6(e) (20% up to $850).  Further, if the arbitration was filed after April 5, 2002, the arbitrators are applying 11 NYCRR §65-4.6(b) if the awarded benefits and interest are equal to or less than the insurer’s written offer during the conciliation process.  Keep this provision in mind!  The attorney’s fee would be $80.00 if the claim were denied.

 

There is a divergence in the awards as to how a claim is defined.  Arbitrator McCorry’s recent awards have awarded an attorney’s fee per provider.  Arbitrator O’Connor’s recent awards have awarded an attorney’s fee per service date at issue in the arbitration.  I have only seen lost wage awards from Arbitrator Theiss and Arbitrator Falvey and they award per 11 NYCRR §65-4.6(e).

 

The key is to ensure that the award is carefully read to determine how the fees are being awarded.  Also, be sure to check your file to ascertain if there was a written offer during conciliation.  You should check to see if §65-4.6(b) applies in your case.

 

2.         CPLR §2309(c)

 

Alright, since reading those appellate term decisions last time I have done a little bit of research on this obscure CPLR provision.  As I said to some of the members at my firm I bet some lucky associate in that plaintiff’s office made partner over that find.  The question becomes how long plaintiff has traction on this issue.

 

CPLR §2309(c) provides:

 

An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

 

One more time but in English, reliance upon an out of state affidavit must be accompanied with a certificate of conformity.

 

What’s a certificate of conformity?  You need to review the cross-reference to Real Property Law 298 et seq.  I am still looking at forms which there is one in the usual CPLR form books but have also been told that the county clerk’s office where the notary received his or her commission has its own form.  Therefore, you need only request the certificate from the clerk instead of drafting your own. 

 

So if you forget to attach this certificate should it be fatal?  I found a few cases that say the failure to attach the certificate is not a fatal defect and can be corrected nunc pro tunc (retroactive effect applied to act allowed to be done after the time the act should have been done).  However, there are some cases that fall the other way.  In short, I am still researching this issue.  Stay tuned….

 

Arbitration

 

3/18/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Mary Anne Theiss (Onondaga County)

Lost Wages Awarded As Applicant Was Seeking Employment at Time of Accident.

The Applicant, eligible injured person, sought lost wage benefits arising out of a June 7, 2007, motor vehicle accident.  The insurer denied the claim for lost wages on the ground that the Applicant was terminated from his position for reasons unrelated to the accident.

 

At the time of the accident, the Applicant was a registered nurse working for a living center.  Before taking this position he advised his employer that he would need approved time off to attend the birth of his grandson in North Carolina, specifically in June 2007.  However, the Applicant had to leave earlier than the approved time off to attend the birth.  Accordingly, he was terminated because he left his employment without authorization even though it was an emergency situation.

 

During his stay in North Carolina the Applicant determined that he would purchase a house and find employment.  The Applicant interviewed for registered nursing positions and during the course of attending a second employment interview was involved in this accident.  The decision indicates that had the accident not occurred he could have worked for the employer who was on his way to interview with.  In fact, after he recovered from a sternum fracture from the accident approximately 3 ½ months later he did work for that employer.

 

The Arbitrator declined to uphold the insurer’s denial for the 3 months and one week lost wage period as the evidence presented indicated that the Applicant would have been employed had the accident not occurred.  It is noted that the lost wage claim for the time frame when he left New York to go to the birth in the North Carolina which was unapproved time off resulting in termination was not awarded.

 

3/18/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Sporadic Treatment and Disability Based Upon Subjective Pain Insufficient to Support Lost Wage Claim.

On March 25, 2005, an out of control car crashed into the window of a Laundromat injuring the Applicant, eligible injured person.  The Applicant allegedly sustained injury to his neck and back.  The Applicant was described as have sporadic, at best, treatment for alleged injuries from this incident.  In this arbitration, the Applicant sought lost wage benefits.

The Arbitrator declined to award the Applicant lost wage benefits as there was no evidence that he could not return to his usual occupation.  The insurer relied upon an independent medical examination by Dr. N. Rehmatullah who found that the Applicant had only mild objective findings in his lower back.  Also, the Applicant advised Dr. Rehmatullah that he discontinued chiropractic care within three months after the accident.

 

The evidence further indicated that the Applicant last treated with Dr. Capicotto on April 1, 2007, who opined that the Applicant’s disability was based on the Applicant’s pain complaints and not objective evidence.

 

 

Litigation

 

4/3/08              Countrywide Ins. Co. v.

563 Grand Medical, P.C. a/a/o Robert Alford, First Department

Rule Reaffirmed that Medical Rationale Not Required to Be In Denial and Nurse Review Not Per Se Invalid Basis for Denial.

The Appellate Division reversed the lower court’s decision granting the medical provider summary judgment.  The insurer raised an issue of fact whether the benefits were properly denied for lack of medical necessity precluding summary judgment.  Of importance, the Appellate Division held that the insurer not only did not have to set forth its medical rationale in the denial form but also that a nurse’s review upon which the denial was based is not per se invalid.

 

3/27/08            Golden Gate Acupuncture a/a/o Carmen Rodriguez v.

State Farm Auto. Ins. Co., Appellate Term, First Department

Discovery on Fraudulent Incorporation Granted and Note Of Issue Struck.

The Defendant’s motion to strike and compel discovery regarding its fraudulent incorporation in violation of General Business Law §§1507 and 1508 was properly granted as the Defendant demonstrated good cause for the discovery.

 

3/24/08            Atlantis Med., DC a/a/o Joahereece A. Blackstock v.

Liberty Mut. Ins. Co., Appellate Term, First Department

I Checked the Independent Contractor Box in Error.

The Defendant’s summary judgment on the ground that the medical provider was an independent contractor not entitling it to no-fault benefits was properly denied.  The Plaintiff’s affidavit from its President and sole Shareholder attesting to this status and that it is not an independent contractor as well as an erroneous marking of the independent contractor box on the NF-3 presented an issue of fact precluding summary judgment.

 

 

 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

03/03/08          Ins. Corp of New York v Cohoes Realty Assocs., L.P.

Appellate Division, Third Department

Carrier Free to Pursue a Subrogation Action Against its Additional Insured Where the Denial of Coverage was Appropriate. 

 

By way of background, Cohoes Realty Assocs., L.P. (“Cohoes”) owned a building; a portion of which was leased to Arcy Plastics (“Arcy”).  Under the lease agreement, Arcy agreed to procure liability insurance which would provide coverage to Cohoes.  Arcy, in compliance with the lease, did just that by adding an additional insured endorsement to its policy with Travelers which provided coverage for landlords.  Cohoes, for its part, was insured under a separate commercial general liability issued by the Insurance Corporation of New York (“InsCorp”).   

 

Unfortunately, the premises caught fire in May of 1999, and Arcy sustained a loss of property as a result.  Travelers, who also insured Arcy under a business risk/property damage policy, agreed to pay portions of the Arcy property damage claim in turn for the rights to seek reimbursement in a subrogation action against Cohoes. 

 

Cohoes resisted the Travelers as subrogee of Arcy lawsuit on the grounds because that Cohoes was insured under the liability policy issued by Travelers the action was barred by the anti-subrogation rule.  In addition, Cohoes argued that it should be entitled to a defense to the Travelers a/s/o Arcy lawsuit from Travelers as an additional insured on the policy that was issued to Arcy.  In essence, Travelers was asked to defend Cohoes in the subrogation case sued by Travelers.

 

Although the claim against Cohoes was for negligence related to a defective sprinkler system, and the Additional Insured endorsement in question provided Cohoes with coverage for “liability arising out of the ownership, maintenance or use of that part of the premises leased to [Arcy]”, the Third Department held that Cohoes did not satisfy the terms of the endorsement because it was meant to only cover third-party actions and “not any potential liability of the landlord or property owner [Cohoes].  (Note: we are unsure how a subrogation claim, like the one present, does not qualify as a third-party claim). 

 

In addition, the Third Department also stated that even if Cohoes did qualify as an additional insured under the Travelers’ policy, the claim was precluded by application of an exclusion removing coverage for damage sustained to property owned by the insured.  (Note: Although not addressed, the Court must have determined that the exclusion applied to property owned by the named insured only and not property owned by the additional insured).    

 

Tellingly, the Court referenced a related decision which held that “it ‘does not accord with common sense’ to require an insurer to defend the same party it is suing in subrogation.”  In light of the above, the Court ruled that Travelers had no duty to defend Cohoes in the action commenced by Travelers as subrogee of Arcy.

           

Furthermore, the Court ruled that because Travelers sought to subrogate a loss it paid under a business owner’s policy; it was not barred by the anti-subrogation rule in pursuing a claim that might have been covered under a liability policy issued by Travelers.  Finally, the Court ruled that a provision of the Cohoes/Arcy lease regarding the waiver of subrogation was not triggered, and furthermore that the waiver of subrogation argument had been lost because it was not plead in Cohoe’s Answer to the Travelers/Arcy subrogation action.

 

03/25/08          Lee v. Otsego Mut. Fire Ins. Co.

Appellate Division, Second Department

Failure to Establish that Insured’s Loss DID NOT Arise from Vandalism Resulted in Denial of Summary Judgment

 

Carrier moved for summary judgment on the basis that insured’s loss was not occasioned out of vandalism.  However, the Trial Court disagreed, and the Second Department affirmed on the basis that carrier failed to establish that the loss was occasioned by something other than the tenant’s vandalism. 

 

EARL’S PEARLS

Earl K. Cantwell, II

[email protected]

 

"Put Plaintiffs and Their Experts into the "Frye" Pan"

 

A good tactic in defense of a toxic tort personal injury claims is to make plaintiff’s experts testify as a predicate matter in jurisdictions that follow Daubert v. Merrell Dow Pharmaceuticals, Inc. and Frye v. United States and their progeny.  This is particularly true in toxic mold cases. Due to a very limited number of scientific studies providing clear conclusions concerning the effects of mold on human health, and due to  many inconsistencies among scientists and studies, the Frye/Daubert obstacle is difficult for plaintiffs to overcome.    

 

In one lawsuit, Fraser v. 301-52 Townhouse Corp. a New York County Supreme Court Justice handed down an important ruling on September 27, 2006 with respect to the admissibility of scientific and medical evidence in a mold claim involving a family that resided in a Manhattan co-op apartment. The plaintiffs, seeking millions of dollars in damages, alleged that water leaks promoted growth of mold in their co-op apartment, which caused them to suffer various general and nonspecific physical symptoms.  The cooperative took the position that the plaintiffs’ theory of causation was not generally accepted as reliable in the relevant scientific and medical communities, and filed a motion to preclude plaintiffs’ medical experts from testifying at trial. After a thorough (indeed, exhaustive) review of the scientific and medical literature and testimony presented, the court held that the Frasers had “…failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians and scientists accept the theory that mold and/or damp indoor environments cause illness.” Accordingly, the court dismissed all mold-related personal injury claims.  Fraser, 831 N.Y.S.2d 347 (N.Y.Co. 2006). 

 

Fraser was not the first defense “Frye” ruling in New York after a hearing in a mold case. A few years earlier, in Davis v. Henry Phipps Plaza South, an unpublished opinion, hundreds of apartment residents sued a property management company, owners and others for billions of dollars alleging  personal injuries, property damage and even death from mold exposure. The court conducted a Frye hearing limited to the issues of whether mold could cause neurological injuries such as brain damage and/or cognitive impairment. The court found that exposure to mold in an “…indoor environment has not gained general acceptance in the scientific community as a cause of brain injury, including cognitive impairment.” The case soon settled for a small fraction of the original claims. Another New York Court in LeBoeuf v. Safeguard Insurance Company, 17 Misc.3d 1130A, 2007 N.Y. Misc. Lexis 7700 (Sup. Ct. West Co. 2007) applied a short form Frye analysis, essentially on papers and affidavits, and concluded that plaintiffs had not demonstrated causal connection between toxic mold and claimed injuries. Plaintiffs’ experts were precluded under Frye, and summary judgment dismissal was granted. See also, Jazairi v. Royal Oaks Apartment Associates, L.P., 2007 U.S. App. Lexis 3501 (11^th Cir. 2007) (Expert testimony precluded by Frye analysis in mold case).

 

As a practice note, it is better to move for a Frye/Daubert hearing before making a dispositive or summary judgment motion.  Otherwise, plaintiff’s experts may be able to present science which on paper seems viable but on cross-examination and with rebuttal would be subject to critique as bad science, inconclusive science, or misinterpretation of scientific studies and data.  If plaintiff’s experts are precluded, summary judgment will inevitably follow.  You want a Frye hearing -- not just a paper battle of attorney-crafted and self-serving affidavits.  See, e.g., B.T.N. an Infant v. Audubon Enlarged City School District, 45 A.D.3d 1339, 845 N.Y.S.2d  614 (4^th Dept. 2007).

 

 

 

ACROSS BORDERS

 

Visit the Hot Cases section of the Federation of Defense & Corporate Counsel website, www.thefederation.org. Dan Kohane serves as the FDCC’s Immediate Past President and Board Chair and past Website Editor

 

 

REPORTED DECISIONS

 

Kumar, as Assignees of Tisack v. American Transit Ins. Co and Hiscock & Barclay

Appeal from an order of the Supreme Court, Niagara County, (Richard C. Kloch, Sr., A.J.), entered January 18, 2007. The order granted third-party defendants' motion to dismiss the third-party complaint.

It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is denied and the third-party complaint is reinstated.

Memorandum: Plaintiffs commenced this action to recover damages incurred as the result of alleged acts of bad faith by defendant-third-party plaintiff, American Transit Insurance Company (American), as the insurer of plaintiffs' assignor. American then commenced a third-party action alleging that the damages plaintiffs sought to recover from American were caused by the negligence of third-party defendants (collectively, Hiscock attorneys). We agree with American that Supreme Court erred in granting the motion of the Hiscock attorneys to dismiss the third-party complaint for failure to state a cause of action and based on documentary evidence (see CPLR 3211 [a] [1], [7]).

"When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff (here third-party plaintiff) the benefit of every possible favorable inference' " (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591, quoting Leon v Martinez, 84 NY2d 83, 87). Furthermore, "[i]n order to prevail on a CPLR 3211 (a) (1) motion, the moving party must show that the documentary evidence conclusively refutes plaintiff's (here third-party plaintiff's) allegations" (AG Capital Funding Partners, L.P., 5 NY3d at 590-591). The Hiscock attorneys are correct that American was not in privity with them and that, in general, "New York courts impose a strict privity requirement to claims of legal malpractice[, i.e.,] an attorney is not liable to a third party for negligence in performing services on behalf of his [or her] client" (Lavanant v General Acc. Ins. Co. of Am., 164 AD2d 73, 81, affd 79 NY2d 623; see Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52). We agree with American, however, that the third-party complaint survives the motion to dismiss based on the principle of equitable subrogation.

"Subrogation is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss" (Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581; see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 521; Humbach v Goldstein, 229 AD2d 64, 66-67, lv dismissed 91 NY2d 921). We agree with American that, " [a]t this stage of the litigation, where there has been no disclosure held, the parties should not be foreclosed, particularly where, as here, the pleadings raise serious issues involving ethical considerations' " (Great Atl. Ins. Co. v Weinstein, 125 AD2d 214, 216; see Allianz Underwriters Ins. Co., 13 AD3d at 174-175). We reject the contention of the Hiscock attorneys that the principle of equitable subrogation does not apply because American has not yet paid the loss of its insured (see Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 175; see also Krause v American Guar. & Liab. Ins. Co., 22 NY2d 147, 152-153). Furthermore, unlike the complaint in Federal Ins. Co., the third-party complaint alleges that the loss sustained by American's insured resulted from the malpractice of the Hiscock attorneys, specifically their failure to appear and defend the insured. Viewing the complaint in the light most favorable to American and according American the benefit of every favorable inference, we therefore conclude that the complaint alleges sufficient facts to withstand the motion to dismiss, inasmuch as we deem it to state a cause of action for equitable subrogation (see generally Great Atl. Ins. Co., 125 AD2d at 215; cf. Federal Ins. Co., 47 AD3d at 62). Contrary to the dissent's conclusion, we need only determine that American has a cause of action, not whether it has stated one (see Leon, 84 NY2d at 88; Guggenheimer v Ginzburg, 43 NY2d 268, 275).

In light of our determination, we need not address American's remaining contention. We have considered the alternate grounds for affirmance set forth by the Hiscock attorneys and plaintiffs and conclude that they are without merit.

All concur except Peradotto, J., who dissents and votes to affirm in the following Memorandum: I respectfully dissent. I agree with the majority that defendant-third-party plaintiff, American Transit Insurance Company (American), was not in "strict privity" with third-party defendants (collectively, Hiscock attorneys) and thus that American failed to state a cause of action for legal malpractice against the Hiscock attorneys based on its failure to meet the strict privity requirement (Lavanant v General Acc. Ins. Co. of Am., 164 AD2d 73, 81, affd 79 NY2d 623; see Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59). I further conclude that American also was not in a relationship of near privity with the Hiscock attorneys and thus [*3]that it failed to state a cause of action for legal malpractice on that ground as well, although I note that the majority has not addressed that issue. "[A] relationship of near privity may . . . be sufficient to sustain a legal malpractice claim" only in cases where there is negligent misrepresentation (Federal Ins. Co., 47 AD3d at 60) and, here, "[n]othing in [the third-party] complaint alleges that [the Hiscock attorneys] made [negligent] misrepresentations upon which [American] relied. Its [third-party] complaint is a plain legal malpractice pleading based on [the Hiscock attorneys'] alleged breach of duty to [American's insured] but asserted instead, improperly, by [American]" (Federal Ins. Co., 47 AD3d at 62; cf. Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 175; see generally State of Cal. Pub. Employees' Retirement Sys. v Shearman & Sterling, 95 NY2d 427, 434). Thus, even affording the third-party complaint a liberal construction and granting the benefit of every favorable inference, and considering the affidavits submitted by American to remedy any pleading defects (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83, 87-88; Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142), I conclude that the factual allegations of American do not establish that it has a cause of action for legal malpractice based on negligent misrepresentation (see generally Leon, 84 NY2d at 88; Guggenheimer v Ginzburg, 43 NY2d 268, 275).

I cannot agree with the majority, however, that American has "state[d] a cause of action for equitable subrogation." In my view, the majority essentially is asserting the existence of a cause of action for legal malpractice based on a theory of equitable subrogation. From a procedural standpoint, the third-party complaint and the papers submitted by American in opposition to the motion do not contain legally sufficient averments supporting such a cause of action based on that theory (see generally Leon, 84 NY2d at 87-88; Guggenheimer, 43 NY2d at 275; Federal Ins. Co., 47 AD3d at 62).

In any event, there are fundamental problems with a cause of action for legal malpractice based on the theory of equitable subrogation from a substantive standpoint as well. "Subrogation is an equitable doctrine [that] entitles an insurer to stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse" (Federal Ins. Co., 47 AD3d at 62, quoting North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294 [internal quotation marks omitted]). I note initially that American conceded at oral argument that the judgment against plaintiffs' assignor, its insured, up to the limits of its policy is reasonable, and no longer challenges its responsibility to pay that amount. Plaintiffs alleged in their complaint, however, that American acted in bad faith by refusing to settle their claim against its insured for the amount of the policy limits, thereby rendering American potentially liable for damages in excess of the policy limits (see Soto v State Farm Ins. Co., 83 NY2d 718, 723). Plaintiffs' action is based in contract, stemming "from the general principle that a covenant of good faith and fair dealing is implied in all contracts, including insurance policies, as well as a recognition of the control an insurer maintains over claims against an insured" (Smith v General Acc. Ins. Co., 91 NY2d 648, 653). "By refusing to settle within the policy limits, an insurer risks being charged with bad faith on the premise that it has advanced its own interests by compromising those of its insured' . . ., or even those of an excess insurance carrier who alone [may be] placed at further risk due to the [primary insurer's] intractable opposition to any settlement of the claim' " (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452, rearg denied 83 NY2d 779).

In order to establish that American acted in bad faith in failing to settle the claim against its insured, "plaintiff[s] must establish that [American's] conduct constituted a gross disregard' of the insured's interests——that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer" (id. at 453). Bad faith is not established if the conduct amounts only to ordinary negligence (see id. at 453-[*4]454). Inasmuch as the Court of Appeals has made it clear that an insurer cannot be held vicariously liable for the malpractice of the attorneys it hires to represent its insured (see generally Feliberty v Damon, 72 NY2d 112, 117-120), American will not be bound to pay a loss based on a third party's wrongdoing, i.e., alleged malpractice committed by the Hiscock attorneys. Rather, American will be bound to pay a loss based on its own wrongdoing, i.e., its bad faith in refusing to settle plaintiffs' claim against its insured.

In my view, the majority's reliance on Allianz Underwriters Ins. Co. v Landmark Ins. Co. is misplaced. In Allianz, the First Department concluded that the excess insurer stated a cause of action against the law firm retained by the primary insurer to represent its insured based on the principle of equitable subrogation (see id. at 174). However, Allianz did not involve a primary insurer seeking to recover damages it faced in an action against it for bad faith, nor was there any claim that the losses for which Allianz sought recovery involved money damages that exceeded the limits of the policy it had issued to the insured. Because the only loss for which American seeks recovery in the third-party action is loss for which it alone can be held liable, it has no cause of action against the Hiscock attorneys for legal malpractice based on the theory of equitable subrogation.

Although the majority notes that the third-party complaint alleges that the loss sustained by the insured resulted from the malpractice of the Hiscock attorneys, I reiterate that such loss is not one for which American can be held legally responsible. Further, its insured "is not otherwise left without a remedy for . . . [the] claimed incompetence [of the Hiscock attorneys], and [the Hiscock attorneys are] not insulated from liability for wrongdoing" (Feliberty v Damon, 72 NY2d 112, 120).

Finally, to the extent that the third-party complaint seeks contribution from the Hiscock attorneys, it also was properly dismissed. It is well established that contribution pursuant to CPLR 1401 is not available with respect to economic losses resulting from a breach of contract (see Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 27-28). "CPLR 1401 had its genesis in tort law . . ., [and] the existence of some form of tort liability is a prerequisite to application of the statute" (id.). Inasmuch as plaintiffs' action is based on American's alleged breach of contract, American is not entitled to contribution from the Hiscock attorneys.

I would therefore affirm the order granting the motion of the Hiscock attorneys to dismiss the third-party complaint.

 

Becerril v. Sol Cab Corp.

Feinman & Grossbard, P.C., White Plains (Steven N. Feinman
of counsel), for appellants.
Law Office of Michael T. Ridge, Port Washington (Michelle S. Russo of counsel),                               for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about October 25, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Defendants established a prima facie entitlement to summary judgment by submitting, inter alia, the affirmed report of a radiologist who opined that plaintiff's MRI films revealed degenerative disc disease, and no evidence of post-traumatic injury to the disc structures (see Montgomery v Pena, 19 AD3d 288, 289 [2005]). Defendants also submitted plaintiff's deposition testimony, where he stated that he missed no work as a result of his accident.

In opposition, plaintiffs failed to raise a triable issue of fact as to whether he sustained a serious injury. Although plaintiff submitted an affirmed report from his treating chiropractor detailing the objective testing employed during plaintiff's examination and revealing limited ranges of motion, no adequate explanation was provided that plaintiff's injuries were caused by the subject accident (see Style v Joseph, 32 AD3d 212, 215 [2006]). Notably, plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident, and an MRI conducted shortly after the subject accident showed degenerative disc disease. In these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation (see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]).

Furthermore, as noted, plaintiff missed no work as a result of the accident, and absent objective medical evidence, his subjective statements that he was limited in his ability to exercise or perform personal maintenance were insufficient to establish a serious injury under the 90/180 day prong of Insurance Law § 5102(d) (see Nelson v Distant, 308 AD2d 338, 340 [2003]; Lauretta v County of Suffolk, 273 AD2d 204, 205 [2000], lv denied 95 NY2d 770 [2000]).

We have considered plaintiff's remaining contentions and find them unavailing.

Breland v. Karnak Corp.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Michael I. Josephs of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated December 13, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as is predicated on allegations that the plaintiff sustained a medically determined injury of a nonpermanent nature which prevented him, for at least 90 of the 180 days immediately after the subject accident, from performing his usual and customary activities, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The defendants made a prima facie showing that the plaintiff did not sustain, as a result of the subject accident, a "permanent loss of use of a body organ, member, function or system [, a] permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system" within the meaning of Insurance Law § 5102(d). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as is predicated on those categories of serious injury (see Patel v DeLeon, 43 AD3d 433).

The Supreme Court erred, however, in granting that branch of the defendants' motion which was, in effect, for summary judgment dismissing so much of the complaint as is predicated on allegations that the plaintiff sustained a medically determined injury of a nonpermanent nature which prevented him, for at least 90 of the 180 days immediately after the accident, from performing his usual and customary activities. In their motion papers, the defendants failed adequately to address those allegations (see Torres v Performance Auto. Group, Inc., 36 AD3d 894, 895). Inasmuch as the defendants failed to satisfy their prima facie burden with respect to that branch of their motion, it is unnecessary for us to consider whether the plaintiff's papers were sufficient to raise a triable issue of fact in opposition (see Ayotte v Gervasio, 81 NY2d 1062, 1063). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was, in effect, for summary judgment dismissing so much of the complaint as is predicated on this category of serious injury (see Patel v DeLeon, 43 AD3d at 434; Lopez v Geraldino, 35 AD3d 398, 399).
FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

Colacino v. Andrews

Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, New
York, N.Y. [Brian J. Isaac and Diane K. Toner] of counsel), for appellants.
Bryan M. Rothenberg (Fiedelman & McGaw, Jericho, N.Y.
[Dawn C. DeSimone] of counsel), for respondents.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated March 14, 2007, as granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Deborah Colacino did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff Deborah Colacino (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on the reports of the injured plaintiff's treating physicians, which noted the existence of limitations in the range of motion in her lumbar and cervical spine. These reports, however, did not sufficiently quantify or qualify the limitations in range of motion so as to establish that they were insignificant (see Doherty v Galla, 46 AD3d 610; Dzaferovic v Polonia, 36 AD3d 652; Whittaker v Webster Trucking Corp., 33 AD3d 613). Moreover, the defendants failed to adequately address the injured plaintiff's claim, set forth in her bill of particulars, that, as a result of the accident, she was unable to perform substantially all of the material acts which constituted her usual and customary daily activities for a period of 90 days during the 180 days immediately following the accident (see Greenidge v Righton Limo, Inc., 43 AD3d 1109; Kouros v Mendez, 41 AD3d 786; DeVille v Barry, 41 AD3d 763; Torres v Performance Auto. Group, Inc., 36 AD3d 894). The accident occurred on March 7, 2004. The injured plaintiff alleged in her bill of particulars that she was incapacitated from her employment for a period of 219 days as a result of the accident, and the defendants' examining neurologist noted in his report that she missed six months of work. The defendants' examining neurologist did not examine the injured plaintiff until September 12, 2006, 2½; years after the accident, and did not relate his medical findings to this category of serious injury for the period of time immediately following the accident.

Since the defendants failed to satisfy their prima facie burden, it is unnecessary to consider whether the opposition papers were sufficient to raise a triable issue of fact (see Doherty v Galla, 46 AD3d 610; Greenidge v Righton Limo, Inc., 43 AD3d 1109; Coscia v 938 Trading Corp., 283 AD2d 538). SKELOS, J.P., SANTUCCI, COVELLO, McCARTHY and CHAMBERS, JJ., concur.

Mager v. Cooney

Schondebare & Korcz, Ronkonkoma, N.Y. (Amy B. Korcz and Robert Rosenberg of counsel), for appellants Sheila Cooney and Kelley A. Grauer.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for appellant Jessica Laverty.
Grey & Grey, LLP, Farmingdale, N.Y. (Joan S. O'Brien of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Jessica Laverty appeals, and the defendants Sheila Cooney and Kelley A. Grauer separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 14, 2007, as denied the motion of the defendant Jessica Laverty for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied the separate motion of the defendants Sheila Cooney and Kelley A. Grauer for the same relief.

ORDERED that the appeal by the defendant Jessica Laverty from so much of the order as denied the motion of the defendants Sheila Cooney and Kelley A. Grauer to dismiss the complaint insofar as asserted against them is dismissed, as that appellant is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

ORDERED that the appeal by the defendants Sheila Cooney and Kelley A. Grauer from so much of the order as denied the motion of the defendant Jessica Laverty for summary judgment dismissing the complaint insofar as asserted against her is dismissed, as those appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further;

ORDERED that the order is reversed insofar as reviewed, on the law, and the motions for summary judgment dismissing the complaint are granted; and it is further,

ORDERED that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.

The medical evidence which the defendants submitted in support of their respective motions for summary judgment dismissing the complaint established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957; Washington v Cross,AD3d, 2008 NY Slip Op 01139 [2d Dept 2008]; Morris v Edmond,AD3d, 2008 NY Slip Op 01122 [2d Dept 2008]). In opposition to the motion, the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b]). RIVERA, J.P., RITTER, CARNI and LEVENTHAL, JJ., concur.

 

 

Cruz v. Calderone

Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker and Roger Acosta of counsel), for appellants.
Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated January 4, 2007, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant met her prima facie burden of showing that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs' treating chiropractor averred that the plaintiffs Jose Cruz (hereinafter Jose) and Any Cruz (hereinafter Any) had sustained injuries and limitations to their cervical and/or lumbar spines as a result of the accident, he failed to address the findings of the defendant's examining radiologist, who concluded that Jose suffered from age-related degenerative changes to his cervical spine, and that Any suffered from age related degenerative changes to her lumbar spine. Thus, the chiropractor's opinion that the cervical and/or lumbar injuries and limitations suffered by Jose and Any were caused by the subject accident was speculative (see Rashid v Estevez, 47 AD3d 786; Luciano v Luchsinger, 46 AD3d 634; Siegel v Sumaliyev, 46 AD3d 666; Giraldo v Mandanici, 24 AD3d 419). Moreover, neither the chiropractor, nor Jose and Any, explained the lengthy gap in their respective treatments which is evident from the record (see Pommells v Perez, 4 NY3d 566; Wang v Harget Cab Corp., 47 AD3d 777; Siegel v Sumaliyev, 46 AD3d 666).

The magnetic resonance imaging reports prepared by the plaintiffs' examining radiologist also failed to raise an issue of fact as to whether either Jose and Any sustained serious injury (see Rashid v Estevez, 47 AD3d 786; Shvartsman v Vildman, 47 AD3d 700; Siegel v Sumaliyev, 46 AD3d 666; Patterson v NY Alarm Response Corp., 45 AD3d 656). The affidavits of Jose and Any were also insufficient to raise a triable issue of fact (see Rashid v Estevez, 47 AD3d 786; Shvartsman v Vildman, 47 AD3d 700).

Finally, the plaintiffs Jose, Any, and William Cruz did not submit competent medical evidence that they sustained medically-determined injuries of a nonpermanent nature which prevented them from performing substantially all of their daily activities for not less than 90 of the first 180 days following the accident (see Wang v Harget Cab Corp., 47 AD3d 777; Shvartsman v Vildman, 47 AD3d 700).
RIVERA, J.P., LIFSON, MILLER, CARNI and ENG, JJ., concur.

Cruz v. Rosenbaum

Connors & Connors, P.C., Staten Island, N.Y. (Timothy M. O'Donovan of counsel),                           for respondent Irwin Rosenbaum.
O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y.                                               (Montgomery L. Effinger of counsel), for respondent Kevin Phung VI.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs Maria Cruz and Vyacheslav Sadykov appeal from an order of the Supreme Court, Kings County (Johnson, J.), entered November 8, 2006, which granted those branches of the separate motions of the defendant Irwin Rosenbaum, the defendant Anthony R. Falwell, and the defendant Kevin Phung VI which were for summary judgment dismissing the complaint insofar as asserted by the appellants against them on the ground that neither of the appellants sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs, and those branches of the respondents' motions which were for summary judgment dismissing the complaint insofar as asserted by the appellants against them are denied.

On the evening of March 22, 2003, the plaintiff Vyacheslav Sadykov was riding in a motor vehicle operated by the plaintiff Maria Cruz on the Belt Parkway in Queens when it was struck from behind by a motor vehicle operated by the defendant Irwin Rosenbaum. Those plaintiffs (hereinafter the appellants) alleged that, as a result of the collision, they each sustained serious injuries within the meaning of Insurance Law § 5102(d). Rosenbaum moved for summary judgment dismissing the complaint insofar as asserted by the appellants against him on the ground that the appellants' injuries were not serious within the statutory definition. Thereafter, the defendant Anthony R. Falwell and the defendant Kevin Phung VI separately moved for the same relief, in reliance, inter alia, on the facts and arguments set forth by Rosenbaum in his motion papers.

The movants failed to meet their prima facie burden of establishing that neither of the appellants sustained serious injury within the meaning of Insurance Law § 5102(d) (see Somers v MacPherson, 40 AD3d 742, 743). In their affirmed reports, Rosenbaum's examining orthopedic surgeon and neurologist failed to compare their findings with regard to Cruz's range of motion in various operations of the cervical and lumbosacral regions of the spine and in the right and left shoulders to what is considered the normal range of motion for those operations (see Somers v MacPherson at 743). In addition, in his review of the magnetic resonance imaging (hereinafter MRI) study performed on Cruz's cervical region of the spine, approximately 10 days after the occurrence, Board Certified radiologist Robert Scott Schepp found central posterior bulging discs at C4-C5 and C5-C6, which were deforming the thecal sac diffusely.

In support of his motion insofar as it related to Sadykov, Rosenbaum submitted, inter alia, a report prepared by Sadykov's medical expert, Dr. Leon Bernstein, in which he indicated that, when he last performed range of motion testing on Sadykov's right knee, on June 28, 2006, the knee ranged from 0ø to 110ø, whereas the norm is 0ø to 145ø. In addition, the report prepared by Dr. Schepp with regard to an MRI study of Sadykov's right knee performed five days after the accident found a partial meniscal tear.

Since the movants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the appellants' papers in opposition were sufficient to raise a triable issue of fact (see Ayotte v Gervasio, 81 NY2d 1062; Somers v MacPherson at 743).
FISHER, J.P., DILLON, McCARTHY and BELEN, JJ., concur.

Doherty v. Ajaib

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto [Jason Levine] of counsel), for appellants.
Steven J. Mandel, P.C., New York, N.Y. (Donald T. Ridley of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 11, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The report of his treating physician was without any probative value since it is clear that in coming to his conclusions therein he relied upon the unsworn medical reports of others (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267).

Further, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether he sustained a serious injury as a result of the subject accident (see Rasid v Estevez, 2008 WL 192102; Roman v Fast Lane Car Service, Inc., 46 AD3d 535; Verette v Zia, 44 AD3d 747; Duke v Saurelis, 41 AD3d 770). Moreover, neither the plaintiff nor his treating physician adequately explained the discontinuance of the plaintiff's treatment in October 2002 (see Pommells v Perez, 4 NY3d 566; Hsu v Briscoe Protective Systems, Inc., 43 AD3d 916; Bestman v Seymour, 41 AD3d 629; Albano v Onolfo, 36 AD3d 728).

Freeman v. Prince Leasing Corp.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Lisa M. Comeau, Garden City, for respondent.

Appeal from order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered October 9, 2007, which denied the cross motion of defendants Prince Leasing and Cardozo to reargue denial of their motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as taken from a nonappealable paper.

The issue that plaintiff failed to establish she had suffered a serious injury, as defined by Insurance Law § 5102(d), is not properly before us. No appeal lies from denial of a
motion for reargument (see Trexler v Kahanovitz, 41 AD3d 161, 162 [2007]).

Laurent v. McIntosh

Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy of counsel), for appellant.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated May 30, 2007, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Arnoux Laurent on the ground that Arnoux Laurent did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Arnoux Laurent is granted.

Contrary to the Supreme Court's determination, the defendant satisfied his prima facie burden of showing that the plaintiff Arnoux Laurent (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's examining physician was without any probative value since she relied on the unsworn medical reports of others in arriving at her conclusions (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Further, the plaintiff's examining physician failed to address the fact that the plaintiff had been involved in prior accidents in which he injured, among other areas, his right knee and lumbar spine. This omission clearly rendered speculative her conclusions that the injuries and limitations noted in the plaintiff's lumbar spine and right knee were the result of the subject accident (see Luciano v Luchsinger, 46 AD3d 634; Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470).

The plaintiff's magnetic resonance imaging reports were unaffirmed and therefore without any probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). The plaintiff's affidavit, by itself, was insufficient to raise a triable issue of fact (see Rashid v Estevez, 47 AD3d 786; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Verette v Zia, 44 AD3d 747; Duke v Saurelis, 41 AD3d 770).

Moreover, neither the plaintiff, nor his examining physician, adequately explained the lengthy time between the date he stopped treatment in 2003, a year after the subject accident, and his recent examination in April 2007 (see Pommells v Perez, 4 NY3d 566; Wei-San Hsu v Briscoe Protective Sys., Inc., 43 AD3d 916; Bestman v Seymour, 41 AD3d 629; Albano v Onolfo, 36 AD3d 728).

The plaintiff also failed to raise a triable issue of fact as to whether he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days immediately following the accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
SKELOS, J.P., SANTUCCI, COVELLO, McCARTHY and CHAMBERS, JJ., concur.

Piperis v. Wan

James G. Bilello, Westbury, N.Y. (Laia Chipkin of counsel), for
appellants Keon Jeramyes Wan and Ping Zhi Wan.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants Albert Berger and Always
Available II. Jeffrey Kim, P.C., Bayside, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Keon Jeramyes Wan and Ping Zhi Wan appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 6, 2007, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendants Albert Berger and Always Available II separately appeal, as limited by their brief, from so much of the same order as denied their separate motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, that branch of the motion of the defendants Keon Jeramyes Wan and Ping Zhi Wan which was for summary judgment dismissing the complaint insofar as asserted against them is granted, and the separate motion of the defendants Albert Berger and Always Available II for summary judgment dismissing the complaint insofar as asserted against them is granted.
The Supreme Court concluded that the defendants satisfied their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff takes no issue with that determination on appeal. [*2]

Contrary to the Supreme Court's determination, however, the plaintiff failed to raise a triable issue of fact in opposition. The plaintiff's hospital records were without any probative value since they were uncertified (see Mejia v DeRose, 35 AD3d 407, 408). The plaintiff did not see Sheila Horn, his treating osteopath, until July 1, 2005, two weeks after the accident. Her report of the examination at that time, while reflecting a significant limitation in certain of the plaintiff's ranges of motion, failed to set forth the objective tests that were used to reach that result (see Murray v Hartford, 23 AD3d 629; Nelson v Amicizia, 21 AD3d 1015, 1016; Maldonado v Ying Li, 13 AD3d 344). Horn's report of her examination of the plaintiff on September 9, 2005, reflects however, that the plaintiff's ranges of motion were virtually normal. In light of this, the unexplained determination by the plaintiff's examining physician, David Delman, that the subject accident caused the injuries and limitations he noted in the plaintiff's cervical spine, lumbar spine, and left knee on February 28, 2007, was speculative and conclusory, and therefore insufficient to raise a triable issue of fact (see Mickelson v Padang, 237 AD2d 495, 496).

The submission of the plaintiff's magnetic resonance imaging reports concerning his cervical spine, lumbar spine, and left knee, as authored by Dr. Robert Diamond, merely showed that, as of July and August 2005, the plaintiff had disc bulges in his cervical and lumbar spine and a tear of the interior horn of the medial meniscus of the left knee. The mere existence of a herniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Shvartsman v Vildman, 47 AD3d 700; Patterson v NY Alarm Response Corp., 45 AD3d 656; Tobias v Chupenko, 41 AD3d 583, 584; Mejia v DeRose, 35 AD3d at 407-408). The plaintiff's affidavit was also insufficient to raise a triable issue of fact as to whether he sustained a serious injury (see Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d at 584).

The plaintiff's admissible medical submissions were insufficient to raise a triable issue of fact as to whether he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569).

Accordingly, the Supreme Court should have granted the motion of the defendant Albert Berger and Always Available II and that branch of the separate motion of the defendants Keon Jeramyes Wan and Ping Zhi wan which was for summary judgment dismissing the complaint insofar as asserted against each of them.
SPOLZINO, J.P., RITTER, DILLON, BALKIN and LEVENTHAL, JJ., concur.

 

Hargrove v. New York City Tr. Auth.

Napoli Bern Ripka, LLP, New York, N.Y. (Denise A. Rubin of counsel), for appellant.
Wallace D. Gossett, New York, N.Y. (Steve S. Efron of counsel),                                                                  for respondents New York City
Transit Authority and Richard K. Yanity.
Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,
Uniondale, N.Y. [Gregory A. Cascino] of counsel), for respondents Callie M. Sams                                and Lance Sams.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), entered January 25, 2007, which granted the motion of the defendants New York City Transit Authority and Richard K. Yanity and the separate motion of the defendants Callie M. Sams and Lance Sams for summary judgment dismissing the complaint insofar as asserted against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable to the defendants.

The Supreme Court properly determined that the defendants satisfied their respective prima facie burdens on their separate motions for summary judgment by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on various unaffirmed and unsworn medical reports in opposing the defendants' motions, all of which were without any probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747, 748; Nociforo v Penna, 42 AD3d 514, 515; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). The affirmation of Dr. Arden Kaisman, one of the plaintiff's physicians, also was insufficient to raise a triable issue of fact since Dr. Kaisman relied on an unsworn report of another physician in reaching his conclusions (see Malave v Basikov, 45 AD3d 539, 540; Govori v Agate Corp., 44 AD3d 821; Verette v Zia, 44 AD3d at 748; Furrs v Griffith, 43 AD3d 389, 390; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267).

The plaintiff's magnetic resonance imaging reports merely showed that as of August 2004 the plaintiff had, among other things, a bulging disc at L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Shvartsman v Vildman, 47 AD3d 700; Patterson v NY Alarm Response Corp., 45 AD3d 656; Tobias v Chupenko, 41 AD3d 583, 584; Mejia v DeRose, 35 AD3d 407, 407-408). Further, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact, as there was no objective medical evidence in support of it (see Shvartsman v Vildman 47 AD3d 700; Tobias v Chupenko, 41 AD3d at 584).
The plaintiff's remaining admissible medical submissions were insufficient to establish that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569, 570).  

Newberger v. Hirsch

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellants.
Shapiro, Beilly, Rosenberg & Aronowitz, LLP, New York, N.Y.
(Roy J. Karlin of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Dorsa, J.), dated October 18, 2006, which granted the motion of the defendant Bobbi Hirsch for summary judgment dismissing the complaint insofar as asserted against her on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Bobbi Hirsch which was to dismiss the complaint insofar as asserted by the plaintiff Neith Newberger against her, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff Neith Newberger was operating a minivan in which her four minor children were passengers, when it was struck by a second motor vehicle, which allegedly was backing out of a driveway and onto the roadway of the Horace Harding Expressway, in Queens. After the plaintiffs commenced the present action, the defendant Bobbi Hirsch moved for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

The medical evidence which the movant submitted in support of her motion failed to establish, prima facie, that Neith Newberger did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Tchjevskaia v Chase, 15 AD3d 389). Notably, the affirmed medical report prepared by the movant's orthopedic expert raised a triable issue of fact (see CPLR 3212[b] as to whether Neith Newberger sustained a "significant limitation of use of a body function or system" (Insurance Law § 5102[d]). Under these circumstances, it is unnecessary to consider the sufficiency of the opposition papers submitted by Neith Newberger (see Tchjevskaia v Chase, 15 AD3d at 389).

However, the medical evidence which the movant submitted in support of her motion as it related to the other plaintiffs established, prima facie, that none of those plaintiffs sustained a serious injury within the statutory definition (see Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, those plaintiffs failed to raise a triable issue of fact.

Griffin v. Pennoyer

Mischel & Horn, P.C., New York (Scott T. Horn of counsel),
for appellant.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 5, 2007, which granted plaintiff's motion for partial summary judgment as to liability, unanimously affirmed, without costs.

Plaintiff's pre-discovery motion for partial summary judgment was not, under the circumstances, premature since defendant failed to demonstrate that facts essential to justify opposition to the motion may exist but could not be stated (see CPLR 3212[f]).

In support of her motion, plaintiff submitted evidence in admissible form, including her affidavit and a police report containing admissions by defendant, demonstrating that defendant made an abrupt left-hand turn into the path of plaintiff's vehicle, which was passing through an intersection with a green light in its favor and the right-of-way, and that plaintiff was free from any negligence. This evidence, which demonstrated that defendant violated Vehicle and Traffic Law § 1141, was sufficient to establish plaintiff's entitlement to judgment as a matter of law on the issue of which driver was responsible for the accident (see Berner v Koegel, 31 AD3d 591 [2006]).

In opposition, defendant failed to raise a triable issue of fact. Defendant's averment that she had a green light in her favor when she attempted to make the left-hand turn did not undercut plaintiff's assertion that she had a green light. Thus, regardless of the color of the light in defendant's direction, plaintiff had the right of way (see Vehicle and Traffic Law § 1141). Moreover, defendant's conclusory assertion that "[b]efore making the turn I checked to make sure that the way was clear" is insufficient to raise a triable issue of fact (see Berner, supra [defendant's testimony that she never saw plaintiff's vehicle before collision in intersection occurred was insufficient to raise triable issue of fact regarding defendant's negligence or plaintiff's comparative fault since a driver has a duty to see that which, through the proper use of senses, should have been seen]).

There is no basis, on this record, for finding that bifurcation of the fault and serious injury (Insurance Law § 5102[d]) issues was improper or in any way prejudicial to defendant [see Shinn v Catanzaro, 1 AD3d 195, 199 [2003]; Reid v Brown, 308 AD2d 331 [2003]).

Young Hwan Park v. Orellana

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),  for appellant.
Bloom & Noll, LLP, Mineola, N.Y. (Richard E. Noll of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Grays, J.), entered June 18, 2007, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, by submitting the affirmed medical report of his examining physician and copies of the plaintiff's deposition testimony (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351; Gaddy v Eyler, 79 NY2d 955, 956-957; Moore v Edison, 25 AD3d 672).

In opposition, the evidence submitted by the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury in the nature of a significant and/or a permanent consequential limitation of use to his cervical spine or left shoulder as a result of the subject accident. While the plaintiff's treating chiropractor opined in his affidavit that the plaintiff sustained permanent injuries and limitations to, among other things, his cervical spine as a result of the subject accident, this opinion was not based on a recent examination of the plaintiff (see Amato v Fast Repair Inc., 42 AD3d 477, 478; Ali v Mirshah, 41 AD3d 748, 749; Elgendy v Nieradko, 307 AD2d 251).

Additionally, although we note that the defendant failed to raise in the Supreme Court his argument that the affirmation of the plaintiff's physician in Maryland did not constitute competent evidence because she was not "authorized by law to practice in the state" (CPLR 2106; see Moore v Edison, 25 AD3d 672; Palo v Latt, 270 AD2d 323), even if we were to consider that affirmation, it did not raise a triable issue of fact, because the plaintiff's Maryland physician failed to set forth the objective tests she relied upon in arriving at her conclusions (see Murray v Hartford, 23 AD3d 629; Nozine v Sav-On Car Rentals, 15 AD3d 555, 556; Bailey v Ichtchenko, 11 AD3d 419, 420).

Saleh v. Bryant

Grasso, Rodriguez & Grasso, Schenectady (Joseph J. Villano of counsel), for appellant.
Horigan, Horigan, Lombardo & Kelly, P.C., Amsterdam (Joseph D. Giannetti of counsel),         for respondent.

MEMORANDUM AND ORDER


Malone Jr., J.

Appeal from an order of the Supreme Court (Kramer, J.), entered March 9, 2007 in Schenectady County, which granted defendant's motion for summary judgment dismissing the complaint.

On January 9, 2004, plaintiff was involved in an automobile accident in the City of Schenectady, Schenectady County when her vehicle was struck by a vehicle driven by defendant. She commenced this negligence action and alleged that, as a result of the accident, she suffered from "positional vertigo, exacerbation of bilateral knee pain . . . , swelling of knees, cervical strain, tingling and shooting pain to bilateral arms and hands, [and] intermittent left shoulder pain." Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law § 5102 (d). Plaintiff opposed the motion and cross-moved for partial summary judgment on the issue of liability. Supreme Court granted defendant's motion and dismissed the complaint, and this appeal ensued.

Plaintiff asserts that she sustained a serious injury under each of the four categories set forth in Insurance Law § 5102 (d), namely, that she suffered a "permanent loss of use of a body organ, member, function or system," a "permanent consequential limitation of use of a body organ or member," a "significant limitation of use of a body function or system," and a nonpermanent injury that rendered her unable to perform substantially all of the material acts which constitute her usual and customary daily activities for at least 90 of the 180 days immediately following the accident (Insurance Law § 5102 [d]). Contrary to plaintiff's claim, we find that defendant satisfied her prima facie burden of demonstrating that plaintiff's afflictions did not rise to the level of a serious injury as defined in the aforementioned categories (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).

In support of her motion, defendant submitted medical records concerning plaintiff's treatment both before and after the accident, as well as excerpts of her deposition testimony. The records disclose that when plaintiff was taken to the emergency room following the accident, she was diagnosed with only a facial contusion. The diagnostic tests did not reveal any fractures of plaintiff's spine or shoulder. Shortly after the accident, plaintiff went to an orthopedic clinic complaining of bilateral knee pain and tingling in the bilateral arms and legs. Significantly, the medical notes indicate that the knee pain "has been going on for a couple of years" and that the tingling is "occasional." Plaintiff underwent physical therapy for the knee pain but, after she completed it in February 2004, her physician did not undertake further treatment. Rather, he directed her to continue on a home exercise program and to wear knee braces as needed.

The medical records further indicate that plaintiff also experienced vertigo following the accident which she first mentioned during a follow-up visit to the hospital. According to such records, this was a recurrence as plaintiff had been previously diagnosed with vertigo in November 2003. Notably, during her visit to an otolaryngologist in February 2004, plaintiff reported that the episodes lasted less than one minute and usually occurred while she was lying down or looking up.

The above evidence establishes that plaintiff's injuries did not fall into the permanent loss of use, permanent consequential limitation or significant limitation categories of serious injury set forth in Insurance Law § 5102 (d). Moreover, inasmuch as plaintiff failed to clearly delineate the scope and duration of the usual and customary tasks she was allegedly unable to perform following the accident during her deposition, the requirements of the 90/180-day category were also not satisfied. Consequently, the burden shifted to plaintiff to put forth proof sufficient to raise a question of fact as to whether she suffered a serious injury under any of the above categories (see Gaddy v Eyler, 79 NY2d at 957).

Under the permanent loss of use category, a plaintiff must establish that the loss of use is total (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]; Best v Bleau, 300 AD2d 858, 860 [2002]). Under the permanent consequential limitation and significant limitation of use categories, a plaintiff must present medical proof containing "'objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system'" (Felton v Kelly, 44 AD3d 1217, 1218-1219 [2007], quoting John v Engel, 2 AD3d 1027, 1029 [2003]). Finally, under the 90/180-day category, a plaintiff must adduce "objective evidence of a 'medically determined injury or impairment of a non-permanent nature which prevent[ed] [the plaintiff] from performing substantially all of the material acts which constitute [his or her] usual and customary daily activities' for at least 90 of the 180 days immediately following the accident" (Felton v Kelly, 44 AD3d at 1219, quoting Insurance Law § 5102 [d]).

The only medical evidence presented by plaintiff in opposition to defendant's motion was the report of an otolaryngologist who examined her for the first time in April 2006 as part of an independent medical examination requested by defendant. While this otolaryngologist confirmed the diagnosis of vertigo, he indicated that it had "subsided on its own" and noted that plaintiff did not require treatment at the time he examined her. Although he stated that she was prone to having recurrences, he did not provide an opinion with respect to permanency or indicate that plaintiff suffered from any physical limitations or was restricted in her activities. Significantly, no medical evidence was adduced by plaintiff with respect to her other alleged injuries. Moreover, plaintiff's self-serving affidavit, in which she sought to remedy deficiencies in her deposition testimony concerning her inability to perform certain activities, was insufficient to raise a question of fact as to the 90/180-day category (see Drexler v Melanson, 301 AD2d 916, 918-919 [2003]). Accordingly, Supreme Court properly dismissed the complaint. In view of our disposition, we need not address plaintiff's cross motion.

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, with costs.

Cadena v. Espinal

Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated July 20, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's treating chiropractor failed to establish that he had personal knowledge of the plaintiff's condition prior to the alleged accident or of the reasons that caused the plaintiff to discontinue treatment after five months. In the absence of such knowledge, the chiropractor's affidavit was insufficient to explain the cessation of treatment, as was necessary (see Pommells v Perez, 4 NY3d 566, 574; Verette v Zia, 44 AD3d 747, 748; Manning v Tejeda, 38 AD3d 622) or to address the findings of the defendants' examining radiologist, who concluded that the disc herniations in the plaintiff's spine were degenerative and pre-existing, and thus not caused by the subject accident (see Giraldo v Mandanici, 24 AD3d 419, 420; Lorthe v Adeyeye, 306 AD2d 252, 253; Pajda v Pedone, 303 AD2d 729, 730; Ginty v MacNamara, 300 AD2d 624, 625).
SPOLZINO, J.P., SANTUCCI, DILLON and BALKIN, JJ., concur.

Coleman v. Shangri-La Taxi, Inc.

Baker, McEvoy, Morrissey & Moskovitz, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Douglas Herbert, Brooklyn, N.Y., for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Held, J.), dated June 26, 2006, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Virginia Coleman against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants failed to meet their prima facie burden of showing that the plaintiff Virginia Coleman (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants failed to even address the plaintiff's allegation that she suffered a left shoulder injury as a result of the subject accident (see Monkhouse v Maven Limo, Inc., 44 AD3d 630, 630-631; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385; Loadholt v New York City Tr. Auth., 12 AD3d 352). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see Monkhouse v Maven Limo, Inc., 44 AD3d at 631; Coscia v 938 Trading Corp., 283 AD2d 538).
SPOLZINO, J.P., RITTER, DILLON, BALKIN and LEVENTHAL, JJ., concur.

Dinten-Quiros v. Brown

Ameduri, Galante & Friscia, Staten Island, N.Y. (Anthony L.
Galante of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from much of an order of the Supreme Court, Richmond County (Giacobbe, J.), dated March 26, 2007, as denied that branch of her motion which was for leave to renew her opposition to the defendant's prior motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which had been granted in an order of the same court dated March 27, 2006.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In support of that branch of her motion which was for leave to renew, the plaintiff was required to proffer both new facts not presented on the prior motion that would warrant denial of the defendant's motion for summary judgment dismissing the complaint, and a reasonable justification for the failure to have presented such facts at that time (see CPLR 2221[e][2],[3]; Madison v Tahir, 45 AD3d 744; St. Claire v Gaskin, 295 AD2d 336, 337). Here, the plaintiff did not provide a reasonable justification for her failure to proffer the alleged new facts in opposition to the defendant's prior motion. Moreover, the alleged new facts would not have warranted denial of the defendant's motion for summary judgment. Therefore, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew. RIVERA, J.P., LIFSON, MILLER, CARNI and ENG, JJ., concur.

Edriste v. Morales

Viscardi, Basner & Bigelow, P.C., Jamaica, N.Y. (Craig K. Tyson of counsel), for appellant.
Bryan M. Rothenberg, Hicksville, N.Y. (Fiedelman & McGaw [Dawn C. DeSimone]                             of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated December 12, 2006, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff raised a triable issue of fact through the submission of an affirmed magnetic resonance imaging report finding a herniated disc in her lumbar spine and the affirmed report of her examining physician, who averred that her cervical and lumbar spine ranges of motion were diminished on all planes as quantified in the report (see Cordero v Ford Credit Titling Trust Ins. Ctr., 39 AD3d 796, 796-797; Hyun Jun Kim v Collazo, 38 AD3d 842, 842-843; Santiago v Rodriguez, 38 AD3d 639, 640; Lim v Tiburzi, 36 AD3d 671, 672; Collado v Pineda, 31 AD3d 684, 685). Accordingly, the Supreme Court should not have granted the defendant's motion for summary judgment dismissing the complaint.
PRUDENTI, P.J., SKELOS, MILLER, COVELLO and McCARTHY, JJ., concur.

O'Shea v. Johnson

Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Jeffrey A. Domoto of counsel),                  for appellant.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated February 27, 2007, as denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Edith M. O'Shea and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant payable by the plaintiff Edith M. O'Shea.

The plaintiff Thomas J. O'Shea was operating a motor vehicle in which his wife, the plaintiff Edith M. O'Shea, was a passenger, when the vehicle was struck from behind by a motor vehicle operated by the defendant. After the plaintiffs commenced this action, the defendant moved for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

The affirmed medical report prepared by Dr. Loren E. Rosenthal, a neurologist, which the defendant submitted in support of his motion insofar as it concerned Mr. O'Shea, failed to establish, prima facie, that he did not sustain a serious injury (see Tchjevskaia v Chase, 15 AD3d 389). Indeed, the report actually identified a triable issue of fact (see CPLR 3212[b]) as to whether Mr. O'Shea exhibited significant limitations in cervical range of motion as a result of the accident (see Insurance Law § 5102[d]). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiffs' submissions with regard to Mr. O'Shea (see Tchjevskaia v Chase 15 AD3d at 389).

However, the affirmed medical report which Dr. Rosenthal prepared with regard to his examination of Mrs. O'Shea established, prima facie, that her injuries were not serious within the statutory definition (see Gaddy v Eyler, 79 NY2d 955, 956-957). The affirmed medical report prepared by Dr. Arnold Goran, which was submitted in opposition to the motion insofar as it concerned Mrs. O'Shea, failed to raise a triable issue of fact. Dr. Goran found that she had full range of motion when he first examined her two months after the accident, and again almost six months after the accident. While Dr. Goran found a 20% reduction in range of motion in Mrs. O'Shea's cervical spine nearly 18 months after the accident, he failed to causally relate that limitation to the accident (see Verrelli v Tronolone, 230 AD2d 789) or to explain the apparent inconsistency in his findings (see Doran v Sequino, 17 AD3d 626, 627). Accordingly, the court should have granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by Mrs. O'Shea on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
PRUDENTI, P.J., MILLER, DILLON and McCARTHY, JJ., concur.

In re State Farm Mutual Automobile Insurance Company v. Scott

Alpert & Kaufman, LLP, New York (Gary Slobin of counsel),
for appellants.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 20, 2007, which granted petitioner insurer's application to permanently stay a hit-and-run arbitration demanded by respondents insureds, unanimously affirmed, without costs.

There is no merit to respondents' argument that the timeliness of the proceeding under CPLR 7503(c) should be measured from service of their attorney's April 16, 2007 letter notifying petitioner of their intention to arbitrate their "uninsured motorist claims." That letter gave no indication whether such claims were being brought under the lack-of-coverage or hit-and-run provision of the uninsured motorist claim section of the subject policy. Rather, timeliness should be measured from service of respondents' May 30, 2007 demand to arbitrate. That was the first notice given by respondents that their claims were being brought under the hit-and-run provision, and thus when petitioner first learned that it had a ground for seeking a stay of arbitration, namely, respondent passenger's statement to petitioner shortly after the accident that there was no physical contact with the offending vehicle (see Matter of Prudential Prop. & Cas. Ins. Co. v Hobson, 67 NY2d 19 [1986]; cf. Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054, 1056 [1991]). No hearing was required since the lack of physical contact was undisputed. We have considered respondents' other contentions and find them unavailing.

Surgical Sock Shop II, Inc. v. U.S. Underwriters Insurance Company

Huttner, Berson & Budashewitz, P.C., New York, N.Y. (Jeffrey A.
Berson of counsel), for appellant.
Miranda Sokoloff Sambursky Slone Verveniotis, LLP, Mineola,
N.Y. (Adam I. Kleinberg and Steven
Verveniotis of counsel), for
respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant U.S. Underwriters Insurance Company is obligated to defend and indemnify the plaintiff in an underlying action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated August 16, 2006, as denied its motion for summary judgment and granted that branch of the cross motion of the defendant U.S. Underwriters Insurance Company which was for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendant U.S. Underwriters Insurance Company which was for summary judgment and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

On December 11, 2002, the plaintiff in the underlying action, who is the unserved third- party defendant in this action, Shulamit Razla, who was pregnant, fell on the staircase leading down to the premises of the plaintiff Surgical Sock Shop II, Inc., in a building owned by the third-party defendant, 59 Realty, Inc. (hereinafter 59). It is undisputed that the plaintiff, through its employees, became aware of the incident contemporaneously with its occurrence or within a very short time thereafter. Razla subsequently left the scene on her own. It is undisputed that at the time of the incident, the plaintiff did not notify its carrier.

By letter dated March 3, 2003, Razla's attorney sent the plaintiff a letter notifying it that he represented her in connection with the aforesaid incident and asking the plaintiff to forward the letter to its carrier. On March 10, 2003, the plaintiff apparently transmitted that letter and a cover letter to its insurance agency. The agency, in turn, on March 19, 2003, faxed the documents, and a notice of occurrence, to the defendant, the plaintiff's liability insurer. It is also undisputed that this was the first notice of the occurrence provided to the defendant. By letter dated May 16, 2003, the defendant affirmed its April 11, 2003, denial of coverage based on the plaintiff's failure to promptly notify it of the occurrence as required by its policy.

In February 2004 Razla commenced the underlying personal injury action against the plaintiff and 59. Shortly thereafter, the plaintiff commenced this action, inter alia, for a judgment declaring that the defendant was obligated to defend and indemnify it in the underlying personal injury action. The plaintiff subsequently moved for summary judgment in its favor. In response, the defendant cross-moved, inter alia, for summary judgment based upon the plaintiff's failure to timely notify it of the occurrence as required by the policy. The plaintiff opposed the cross motion, contending that its proof raised, at the least, a triable issue of fact as to whether any delay in notification was excusable based upon a reasonable nonbelief of any liability on its part. The Supreme Court denied the motion and granted the cross motion, finding, inter alia, that the plaintiff's nonbelief in its liability was not reasonable based upon the underlying circumstances. We now modify by also denying that branch of the defendant's cross motion which was for summary judgment.

In response to the defendant's prima facie showing that there was no reasonable basis for the plaintiff's belief as to its nonliability, the plaintiff raised a triable issue of fact. The affidavit of Rachel Posner, the plaintiff's former employee, showed the existence of a factual question as to whether the plaintiff's failure to immediately notify the defendant was reasonable. She averred that upon hearing a noise on the stairwell, she went out to investigate. Upon doing so, she discovered a woman (Razla) sitting on the steps above the landing. Upon Posner's inquiry as to whether she was all right and whether she required an ambulance, the woman answered she was all right but remained seated. After Posner brought her some water, she again stated she was all right, and after several minutes got up without assistance and left without entering the plaintiff's premises. Posner further averred that the person was not a regular customer, and was not known to her. This was sufficient, at the least, to show the existence of a factual question as to whether the plaintiff's belief in its nonliability was reasonable (see D'Aloia v Travelers Ins. Co., 85 NY2d 825; Nails 21st Century Corp., v Colonial Coop. Ins. Co., 21 AD3d 1069, 1070-1071; Kaliandasani v Otsego Mutual Fire Ins. Co., 256 AD2d 310; see also Jordan Constr. Prods. Corp., v Travelers Indem. Co. of Am., 14 AD3d 655; cf. Deso v London & Lancashire Indem. Co. of Am., 3 NY2d 127, 129-131; Paul Devs., LLC, v Maryland Casualty Ins. Co., 28 AD3d 443).

Razla testified at her deposition in the underlying personal injury action to a different factual scenario as to what happened. She claimed that after she fell she screamed "I am dying," "my baby is dead," and "help me," but that the women who came out of the plaintiff's premises did not want to touch her because of her condition, and that she was unable to move for 30 or 40 minutes. This testimony, if believed, would show that a belief by the plaintiff in its nonliability was not reasonable. Thus, because there is a factual question as to what occurred when Razla fell on the stairs, summary judgment should have been denied (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Kantrow v. Security Mutual Insurance Company

Williamson, Clune & Stevens, Ithaca, N.Y. (John H. Hanrahan 3d
of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in an action entitled Maher v Kantrow, pending in the Supreme Court, Suffolk County, under Index No. 18874/05, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Baisley, J.), dated March 13, 2007, which granted the defendant's motion for summary judgment.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiffs in the underlying action.

In an underlying action, a minor alleges that she was "physically detained and sexually assaulted" in her own home on May 7, 2005, by the minor son of the plaintiffs in this action, Fred S. Kantrow and Marlene R. Kantrow (collectively hereinafter the Kantrows), and that she was under 14 years of age on the date of the incident.

The plaintiffs in the underlying action are the infant plaintiff, by her mother, and the mother individually. The Kantrows are the only defendants named in the underlying action; the Kantrows' son is not named as a defendant. The plaintiffs in the underlying action allege that the infant plaintiff suffered serious injuries because of the Kantrows' negligent parental supervision, specifically their "careless and negligent . . . failure to properly supervise their minor' son, who the [Kantrows] knew had a predisposition to commit sexual acts." Further, they assert that the incident occurred "due to negligent acts [by] the [Kantrows], in causing and allowing and/or permitting the infant plaintiff to be willfully, maliciously and physically detained and sexually assaulted, [and] in failing to prevent . . . the occurrence." The infant seeks to recover damages for physical and emotional injuries, while the mother asserts a derivative cause of action.

The Kantrows thereafter commenced the instant action for a judgment declaring that the defendant insurer Security Mutual Insurance Company (hereinafter Security), their homeowner's insurer at the time of the alleged incident, is obligated to defend and indemnify them in the underlying action. Security moved for summary judgment, arguing that it properly disclaimed coverage because the conduct at issue in the underlying complaint was not an accident, and therefore not a covered "occurrence" under the policy, and because the injuries resulting from the alleged sexual abuse and child abuse committed by the Kantrows' son was specifically excluded by the policy. The Supreme Court granted Security's motion. We affirm.

Security properly disclaimed coverage under exclusion 1(h) of the subject policy, which specifically excludes "bodily injury . . . caused intentionally by or at the direction of any insured." In the underlying action, all of the injuries allegedly sustained by the infant plaintiff and her mother are alleged to have resulted solely from the intentional sexual assault of the infant plaintiff by the Kantrows' son, who is an "insured" as defined by the policy. Further, exclusions 1(m) and 1(n) specifically exclude coverage for child abuse or sexual abuse, with such exclusions deemed to apply regardless of whether claims are made directly, indirectly, or derivatively as sounding in negligence. Thus, despite the fact that the underlying complaint couches its allegations against the Kantrows in negligence by asserting that the Kantrows permitted or failed to stop their son's conduct, coverage is excluded, since the gravamen of the underlying action seeks to hold the Kantrows liable for the injuries resulting from their son's intentional acts (see Allstate Ins. Co. v Mugavero, 79 NY2d 153, 163-164; see also Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311; Essex Ins. Co. v Pingley, 41 AD3d 774, 777).

Moreover, Security also properly disclaimed coverage on the ground that the alleged incident is not an accident, and therefore not a covered "occurrence." Given that the Kantrows' son is alleged to have intentionally sexually assaulted the infant plaintiff in the underlying action, who at the time of the alleged incident was under 14 years old, any resulting injuries she sustained are deemed to have inherently flowed from his conduct (see Allstate Ins. Co. v Mugavero, 79 NY2d at 161, 163; see also Allstate Ins. Co. v Schimmel, 22 AD3d 616).

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that Security is not obligated to defend and indemnify the Kantrows in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901; Preferred Mut. Ins. Co. v SAV Carpentry, Inc., 44 AD3d 921, 923).

Wronka v. GEM Community Management

 

MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, N.Y.
(Paul T. McDermott of counsel), for third-party
defendant-appellant-respondent.
Pinsky & Skandalis, Syracuse, N.Y. (Lauren M. Miller of
counsel), for defendants third-party
plaintiffs-respondents-appellants.

DECISION & ORDER

In an action to recover damages for personal injuries, and a third-party action, inter alia, for contractual indemnification and to recover the defense costs incurred in the main action pursuant to the terms of a liability insurance policy, (1) Farm Family Casualty Insurance Company appeals from (a) so much of an order of the Supreme Court, Orange County (Slobod, J.), dated September 21, 2005, as granted that branch of the motion of GEM Community Management and Hillside Village Condominium Association which was to direct it to pay, pursuant to the terms of its liability insurance policy, the defense costs incurred in the main action prior to July 6, 2005, and denied its cross motion to dismiss the third-party complaint, and (b) so much of an order of the same court dated March 2, 2006, as, upon granting its motion for leave to reargue that branch of the motion of GEM Community Management and Hillside Village Condominium Association, and its cross motion, adhered to the original determination, and (2) GEM Community Management and Hillside Village Condominium Association cross-appeal from (a) so much of the order dated September 21, 2005, as denied those branches of their motion which were to direct Farm Family Casualty Insurance Company to pay, pursuant to the terms of its liability insurance policy, the defense costs incurred in the main action after July 6, 2005, and for contractual indemnification in the main action, and denied those branches of their motion which were for leave to amend the third-party complaint to add a cause of action alleging breach of contract, and for summary judgment as to that cause of action, and (b) so much of the order dated March 2, 2006, as, upon granting their cross motion for leave to reargue those branches of their motion which were to direct Farm Family Casualty Insurance Company to pay, pursuant to the terms of its liability insurance policy, the defense costs incurred in the main action after July 6, 2005, and for contractual indemnification in the main action, adhered to the prior determination.

ORDERED that the appeal from the order dated September 21, 2005, is dismissed, without costs or disbursements, as that portion of the order was superseded by the order dated March 2, 2006, made upon reargument; and it is further,

ORDERED that the cross appeal from so much of the order dated September 21, 2005, as denied those branches of the motion of GEM Community Management and Hillside Village Condominium Association which were to direct Farm Family Casualty Insurance Company to defend them, pursuant to the terms of its liability insurance policy, in the main action after July 6, 2005, and indemnify them in the main action, is dismissed, without costs or disbursements, as those portions of the order were superseded by the order dated March 2, 2006, made upon reargument; and it is further,

ORDERED that the order dated September 21, 2005, is reversed insofar as reviewed, on the law, without costs or disbursements, and those branches of the motion of GEM Community Management and Hillside Village Condominium Association which were for leave to amend the third-party complaint to add a cause of action alleging breach of contract, and for summary judgment on that cause of action, are granted; and it is further,

ORDERED that the order dated March 2, 2006, is modified, on the law, without costs or disbursements, by deleting the provision thereof which, upon reargument, adhered to so much of the original determination dated September 21, 2005, as granted that branch of the motion of GEM Community Management and Hillside Village Condominium Association which was to direct Farm Family Casualty Insurance Company to pay, pursuant to the terms of its liability insurance policy, the defense costs incurred in the main action prior to July 6, 2005, and substituting therefor a provision, upon reargument, vacating that portion of the order dated September 21, 2005, and thereupon, denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from.

The plaintiff slipped on ice on a walkway on property owned by Hillside Village Condominium Association (hereinafter Hillside) and managed by GEM Community Management (hereinafter GEM), and commenced this action against them. GEM and Hillside then commenced a third-party action against Keller Equipment Rental & Sales West, Inc. (hereinafter Keller), the contractor responsible for snow and ice removal on the property, and Keller's insurer, Farm Family Casualty Insurance Company (hereinafter Farm Family), for contractual indemnification and to recover the defense costs incurred in the main action pursuant to the terms of Farm Family's liability insurance policy. GEM and Hillside are additional insureds on the Farm Family policy. By order dated July 6, 2005, the court granted Keller's motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

The Supreme Court erred in granting that branch of the motion of GEM and Hillside which was to direct Farm Family to pay, pursuant to the terms of its liability insurance policy, the defense costs incurred in the main action prior to July 6, 2005. The claims against Keller have been dismissed. Farm Family may properly deny coverage pursuant to the terms of its liability insurance policy since it has been determined that the injuries did not result from a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195; Town of Oyster Bay v Employers Ins. of Wausau, 269 AD2d 387).

That branch of the motion of GEM and Hillside which was for leave to amend the third-party complaint to add a cause of action alleging breach of contract against Farm Family should have been granted. Leave to amend shall be granted freely upon such terms as may be just (see CPLR 3025[b]). Here, GEM and Hillside did not unreasonably delay in seeking leave to amend, and no prejudice to Farm Family has been shown (see Santori v Met Life, 11 AD3d 597; cf. Haller v Lopane, 305 AD2d 370).

Furthermore, upon amendment of the third-party complaint to assert a cause of action alleging breach of contract, GEM and Hillside were entitled to summary judgment as to that cause of action. Farm Family failed to raise an issue of fact in response to GEM and Hillside's showing of prima facie entitlement to judgment as a matter of law that Farm Family agreed to share the costs of the defense in the main action. When parties enter into a preliminary agreement, anticipating that a more formal contract will be executed later, the contract is enforceable if it embodies all the essential terms of the agreement (see Pescatore v Manniello, 19 AD3d 571; Sabetfard v Djavaheri Realty Corp., 18 AD3d 640). Furthermore, an exchange of correspondence between counsel may constitute a binding stipulation pursuant to CPLR 2104 (see Roberts v Stracick, 13 AD3d 1208; Gaglia v Nash, 8 AD3d 992). Here, the material terms of the stipulation were set forth in a letter from counsel for Farm Family to counsel for GEM and Hillside dated May 4, 2005, and confirmed in a reply from counsel for GEM and Hillside to counsel for Farm Family dated May 26, 2005. Farm Family now seeks to avoid enforcement of the terms that Farm Family itself proposed (see Stafaniw v Cerrone, 130 AD2d 483). We conclude that the exchange of correspondence presented here was sufficient to constitute an enforceable stipulation in the third-party action.

In the Matter of Mercury Insurance Group v. Ortiz

Richard T. Lau (Saretsky Katz Dranoff & Glass, LLP, New York,
N.Y. [Linda S. Strong, Howard J. Newman, and Howard R. Cohen]
of counsel), for respondent State Farm Insurance.


DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated March 1, 2007, which, after a framed-issue hearing, denied the petition, and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs to the respondent State Farm Insurance.

Mercury Insurance Group (hereinafter Mercury) commenced this proceeding to permanently stay arbitration of a claim for uninsured motorist benefits brought by its insured, Maria Ortiz. Mercury alleged that on the date of the alleged incident, October 10, 2003, the vehicle owned and operated by the alleged tortfeasor, Stephen M. Sontag, was insured by State Farm Insurance (hereinafter State Farm). After a framed-issue hearing on whether State Farm had properly canceled that policy prior to October 10, 2003, the court denied the petition, and, in effect, dismissed the proceeding.

Strict compliance with Vehicle and Traffic Law § 313 is required for a notice of termination to be deemed effective as to third parties (see Vehicle and Traffic Law § 313[1], [2]; Matter of Progressive N. Ins. Co. v White, 23 AD3d 477, 478; Matter of Travelers Indemn. Co. v Shepard, 125 AD2d 681, 681-682). Contrary to Mercury's contention, the evidence adduced at the framed-issue hearing demonstrated that State Farm's termination of Sontag's policy, effective on August 22, 2003, complied with Vehicle and Traffic Law § 313(1) and (2). Accordingly, because State Farm's policy for the Sontag vehicle was no longer in effect on the date of the alleged incident, the Supreme Court properly denied Mercury's petition to permanently stay arbitration and directed the parties to proceed to arbitration.

Continental Casualty Co., v. AON Risk Services Companies, Inc.,

Nixon Peabody LLP, Buffalo (Laurie Styka Bloom of counsel),
for appellants.
Dechert LLP, New York (Rodney M. Zerbe of counsel), for
respondents.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered March 13, 2007, dismissing the complaint and bringing up for review an order, same court and Justice, entered January 24, 2007, which granted defendants' motion for summary judgment and denied plaintiffs' motion for summary judgment on their indemnification claim, unanimously affirmed, with costs.

Plaintiffs' claims against insurance broker defendant AON Risk Services, Inc. of New York (AON NY) for failing to deliver to their nonparty insured the terms and conditions of its insurance policy were properly dismissed for failure to state a cause of action. While an insurance broker sometimes acts as agent for the insurer so that its acts are treated as the acts of the insurer (Guardian Life Ins. Co. of Am. v Chemical Bank, 94 NY2d 418, 423 [2000]), there is no evidence of action on plaintiffs' part from which it can be inferred that they entrusted AON NY with delivering the policy documents or authorized it to represent them for any other purpose (see Travelers Ins. Co. v Raulli & Sons, Inc., 21 AD3d 1299, 1300 [2005]; Indian Country v Pennsylvania Lumbermens Mut. Ins. Co., 284 AD2d 712, 714-715 [2001]). Plaintiffs' claim for common-law indemnification fails for the same reason. Nor is there any evidence that AON NY exercised discretionary functions on plaintiffs' behalf or possessed superior expertise on which plaintiffs relied so as to give rise to a fiduciary duty (see Philan Ins. v Hall & Co., 215 AD2d 112, 112-113 [1995]). Plaintiffs' claim for professional malpractice is also time-barred (see Mauro v Niemann Agency, 303 AD2d 468, 469 [2003]).

In the Matter of Allstate Insurance Company v. Rivera

 

Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y.
(Frank A. Tinari and Thomas A. Osborn of counsel), for appellants.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel),
for respondent.


DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of claims for underinsured motorist benefits, Nydia Rivera, Lisa Rivera, Nadine Valoy, Charisse Mercado, and Sasha Quintanilla appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 26, 2007, which granted the petition.

ORDERED that the order is affirmed, with costs.

On July 15, 2005, Nydia Rivera, Lisa Rivera, Nadine Valoy, Charisse Mercado, and Sasha Quintanilla (hereinafter the appellants) were passengers in an automobile owned and operated by Petra Mercado (hereinafter the Mercado vehicle), when it was involved in an accident with a motor vehicle owned and operated by Nilza Rodriguez (hereinafter the Rodriguez vehicle). The Mercado vehicle was covered by an insurance policy issued by the petitioner, Allstate Insurance Company (hereinafter Allstate). The Rodriguez vehicle was covered by a policy issued by nonparty GMAC Insurance Company (hereinafter GMAC).

Under the Allstate policy, the limits for both third-party bodily injury and for the supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) were in the amount of $25,000 for each person and $50,000 for each accident, the same limits as in the GMAC policy. As a result of the accident, GMAC paid the sum of $25,000 to Mercado and the sum of $5,000 to each of the five appellants, thereby exhausting the $50,000 per-accident limit under the GMAC policy. The appellants thereafter sought additional benefits under the SUM endorsement of Mercado's Allstate policy. Allstate denied their claims, and the appellants demanded arbitration. The Supreme Court granted Allstate's petition for a permanent stay of arbitration. We affirm.

In accordance with 11 NYCRR 60-2.3(f), the SUM endorsement of Mercado's Allstate policy provides, in pertinent part, that "[t]he term uninsured motor vehicle' means a motor vehicle that, through its ownership, maintenance or use, results in bodily injury to an insured, and for which . . . there is a bodily injury liability insurance coverage . . . applicable to such motor vehicle at the time of the accident, but . . . the amount of such insurance coverage . . . is less than the third-party bodily injury liability limit of this policy . . . or . . . the amount of such insurance coverage . . . has been reduced, by payments to other persons injured in the accident, to an amount less than the third-party bodily injury liability limit of this policy."

The Supreme Court correctly determined that the appellants were not entitled to benefits under the SUM endorsement of the Allstate policy. The bodily injury liability insurance coverage provided by the GMAC policy was equal to, and thus not "less than," the third-party bodily injury liability limit of the Allstate policy. Moreover, payments to "other persons" injured in the accident did not reduce the amount of the bodily injury coverage provided by the GMAC policy to an amount "less than" the third-party bodily injury liability limit of the Allstate policy. While occupying Mercado's vehicle as passengers, the appellants were insureds under the Allstate policy. GMAC's payments to them, therefore, were not payments to "other persons" injured in the accident. Accordingly, the SUM endorsement of the Allstate policy was not triggered, and the permanent stay of arbitration under that endorsement was properly granted (see Matter of Clarendon Natl. Ins. Co. v Nunez,AD3d, 2008 NY Slip Op 01144 [2d Dept 2008]; Matter of Government Empls. Ins. Co. v Young, 39 AD3d 751, 753).

The appellants' remaining contention is without merit.

In the Matter of Deborah Balis v. Chubb Group of Insurance Companies

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for appellant.
Curtis, Vasile, P.C., Merrick, N.Y. (Patricia M. D'Antone of
counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated March 12, 2007, which denied the petition.

ORDERED that the order is affirmed, with costs.

The petitioner failed to meet her burden of proof by clear and convincing evidence that any impropriety or misconduct of the arbitrator prejudiced her rights or the integrity of the arbitration process or award (see Matter of Mounier v American Tr. Ins. Co., 36 AD3d 617; Matter of Hausknecht v Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778; Matter of Westchester Ice Hockey Officials Assn., Inc. v Section One, Inc. of N.Y. State Pub. High School Athletic Assn., Inc., 15 AD3d 411).

Contrary to the petitioner's contention, the path of analysis, proof, and persuasion by which an arbitrator reaches a conclusion is beyond judicial scrutiny (see Central Sq. Teachers Assn. v Board of Educ. of Cent. Sq. Cent. School Dist., 52 NY2d 918, 919).

The petitioner failed to present evidentiary proof of actual bias or the "appearance of bias" on the part of the arbitrator (Matter of Schwartz v New York City Dept. of Educ., 22 AD3d 672, 673; see Matter of Wisner Professional Bldg. v Zitone Constr. & Supply Co., 224 AD2d 538, 538). Accordingly, the petitioner failed to establish entitlement to vacatur of the arbitrator's award pursuant to CPLR 7511(b)(ii) on the ground of partiality.

Tower Insurance Company of New York  v. Lin Hsin Long Co.

Law Office of Max W. Gershweir, New York (Joseph S. Wiener
of counsel), for appellant.
Larry Dorman, P.C., Astoria, (Michael S. Murphy of counsel),
for Lin Hsin Long Co. respondent.
Levine & Slavit, New York (Ira S. Slavit of counsel), for
Charlotte Theodoratos respondent.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered September 7, 2007, which denied plaintiff's motion for summary judgment declaring that it is not obligated to defend or indemnify defendant Lin Hsin Long Co., t/a Hunan Ritz Restaurant (the insured), in an action commenced against it by defendant Charlotte Theodoratos, reversed, on the law, without costs, the motion granted and summary judgment awarded to plaintiff declaring that it is not obligated to defend or indemnify the insured in the lawsuit commenced against it by Theodoratos. The Clerk is directed to enter judgment accordingly.

Plaintiff issued a commercial general liability policy to the insured, a restaurant, that was to provide coverage for the insured's premises from February 3, 2004 through February 3, 2005. The policy contained a provision requiring the insured, "as soon as practicable," to provide notice to plaintiff of an "occurrence" that may result in a claim.

On January 29, 2005, Theodoratos slipped and fell near the women's restroom on the lower level of the insured's premises. Theodoratos was removed from the premises on a stretcher and transported by ambulance to a hospital. Employees of the insured were present when the accident occurred, were aware of the accident and offered assistance to Theodoratos. The manager of the insured, while not present when the accident occurred, was informed of the accident the day it occurred by other employees of the insured. Based on the information imparted to him by the employees, the manager has asserted in this litigation that he believed that the accident was "caused by [Theodoratos'] own actions," that no claim would be asserted against the insured and that "no further action" was required.

Approximately two and a half weeks after the accident, Theodoratos retained counsel to represent her in connection with the accident. Shortly after being retained, counsel requested the name and address of the licensee of the premises where the accident occurred from both the Westchester County Department of Health and the State Liquor Authority (SLA), and a copy of the police report regarding the accident generated by the New Rochelle Police Department. By a letter dated March 3, 2005, the SLA provided counsel with the name and address of the insured.

Counsel sent a letter dated March 8, 2005 to the insured, notifying it that Theodoratos had [*2]sustained personal injuries on the premises as a result of the insured's negligence, and "suggest[ing] that [the insured] forward th[e] letter to [its] insurance carrier so that they [sic] may investigate th[e] occurrence and advise us as to what disposition they [sic] intend on making on this claim." After receiving no response from the insured, counsel sent a follow-up letter dated April 11, 2005. Counsel observed that he had not been contacted by the insured's insurance carrier despite his "suggestion that [the insured] forward [the March 8] letter to [the insurance carrier]," and stated that "[i]n view of the time element, a prompt response from your insurance company would be appreciated." Counsel had no further contact with the insured, and did not undertake any efforts to identify the insured's insurance carrier or notify the insurance carrier of the accident.

Plaintiff did not receive notice of the accident until October 21, 2005, when it received from either the insured or the insured's broker a copy of the summons and complaint in Theodoratos' personal injury action, which was commenced on July 12, 2005. Following its investigation of the accident, plaintiff, by a letter dated November 17, 2005, disclaimed coverage on the ground that neither the insured nor Theodoratos timely notified plaintiff of the accident. Plaintiff commenced this action seeking a declaration that it has no duty to defend or indemnify the insured in Theodoratos' action. Supreme Court denied plaintiff's motion for summary judgment on the complaint, and this appeal ensued.

Where a liability insurance policy requires that notice of an occurrence be given "as soon as practicable," such notice must be accorded the carrier within a reasonable period of time (Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742, 743 [2005]). "The duty to give notice arises when, from the information available relative to the accident, an insured could glean a reasonable possibility of the policy's involvement" (Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240 [2002]). " [W]here there is no excuse or mitigating factor, the issue [of reasonableness] poses a legal question for the court,' rather than an issue for the trier of fact" (SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583, 584 [1998], quoting Hartford Acc. & Indem. Co. v CNA Ins. Cos., 99 AD2d 310, 313 [1984]).

Here, plaintiff established as a matter of law that the insured failed to give plaintiff notice of the accident within a reasonable period of time. The accident involved a patron who slipped and fell on a floor on the insured's premises and had to be removed from the premises on a stretcher and placed in an
ambulance. Moreover, the insured, through its employees (see Public Serv. Mut. Ins. Co. v Harlen Hous. Assoc., 7 AD3d 421 [2004]), knew about the accident on the day it occurred. Thus, although the duty to give notice arose on the day of the accident, the insured did not give plaintiff notice until almost nine months after it occurred — an unreasonable delay as a matter of law (see id.; DiGuglielmo v Travelers Prop. Cas., 6 AD3d 344, 346 [2004], lv denied 3 NY3d 608 [2004]; Paramount Ins. Co., 293 AD2d at 238, 241).

Seeking to avoid the consequences of its failure to give notice to plaintiff within a reasonable period of time, the insured asserts that it had a reasonable, good faith belief that the accident would not result in liability (see Great Canal Realty Corp., 5 NY3d at 743). As a matter of law, however, this excuse fails for the reasons just discussed — the insured's employees were aware of the accident, it involved a patron who slipped and fell on the insured's premises and the patron had to be removed by stretcher and transported by ambulance (see Paramount Ins. Co., 293 AD2d at 240-241; SSBSS Realty Corp., 253 AD2d at 585; see also DiGuglielmo, 6 AD3d at 346; Rondale Bldg. Corp. v Nationwide Prop. & Cas. Ins. Co., 1 AD3d 584 [2003]). [*3]Moreover, the manager's professed belief that the accident was Theodoratos' own fault is insufficient to raise a triable issue of fact with respect to whether the insured had a reasonable, good-faith belief that the accident would not result in liability. As Justice Sullivan stated in Paramount Ins. Co. (293 AD2d at 240):
"the requirement of prompt notice of any occurrence that may result in a claim' should not be interpreted in a way that the insurer is compelled to relinquish its right to prompt notice and all the benefits that accrue therefrom - a timely investigation and the opportunity, if appropriate, to dispose of the claim in its early stages, an opportunity that might be irretrievably lost in the case of delayed notice - by placing undue emphasis on the liability assessment of one not trained or even knowledgeable in such matters."

Similarly, no triable issue of fact exists regarding the adequacy of the efforts of Theodoratos' counsel to ascertain the identity of plaintiff and notify it of the accident. An injured party, such as Theodoratos, has an independent right to notify an insurance carrier of an accident (see Insurance Law § 3420[a][3]). However, "the injured party is required, in order to rely upon that provision, to demonstrate that he or she acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer" (Steinberg v Hermitage Ins. Co., 26 AD3d 426, 428 [2006]; see also Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 568 [1957], affd 4 NY2d 1028 [1958] ["When the injured party has pursued his [or her] rights with as much diligence as was reasonably possible the statute shifts the risk of the insured's delay to the compensated risk-taker who can initially accept or reject those for whom it will bear such risks" (internal quotation marks omitted)]. Stated differently, "where the injured person proceeds diligently in ascertaining coverage and in giving notice, he [or she] is not vicariously charged with any delay by the assured" (Jenkins v Burgos, 99 AD2d 217, 221 [1984]; see National Grange Mut. Ins. Co. v Diaz, 111 AD2d 700, 701 [1985]).

Here, the evidence establishes as a matter of law that Theodoratos neither exercised reasonable diligence in attempting to ascertain the identity of plaintiff nor notified it of the accident. With regard to the latter, it is undisputed that Theodoratos did not give any notice to plaintiff; the belated notice received by plaintiff was supplied by the insured when it or its broker forwarded to plaintiff the summons and complaint in Theodoratos' action. Since Theodoratos did not assert her own right to provide notice, but rather relied on the insured to do so, her rights are derivative of the insured's (see Mount Vernon Fire Ins. Co. v Harris, 193 F Supp 2d 674, 679 [ED NY 2002]). Appel v Allstate Ins. Co. (20 AD3d 367 [2005]), Denneny v Lizzie's Buggies (306 AD2d 89 [2003]) and Cirone v Tower Ins. Co. of N.Y. (39 AD3d 435 [2007], lv denied 9 NY3d 808 [2007]), cited by the dissent, are distinguishable. In both Appel and Denneny, the injured party provided some form of belated notice to the insurance carrier. In Cirone, the Court found that the injured party's action to recover insurance proceeds pursuant to Insurance Law § 3420(a)(2) was not barred based upon her failure to give written notice to the carrier because the insured provided notice of the accident to the carrier and the injured party's counsel, upon being contacted by the carrier, provided the carrier information regarding the accident.

With regard to the issue of reasonable diligence, shortly after the accident, Theodoratos' counsel made inquiries with both the Westchester County Department of Health and the SLA, seeking the name and address of the licensee of the premises where the accident occurred; no request for information regarding the insurer of the licensee was requested from these agencies or anyone else. The plain language of the requests shows that Theodoratos' counsel was seeking to [*4]ascertain the identity of the licensee of the premises, not the licensee's insurer, and thus these requests do not evince reasonable diligence by Theodoratos' counsel in seeking to identify plaintiff. For the same reasons, the mere request for a copy of the police report regarding the accident generated by the New Rochelle Police Department does not evince reasonable diligence.

Even more importantly, however, Theodoratos' counsel's letter to the insured simply "suggest[ed]" that the insured forward the letter to its insurance carrier. Counsel's subsequent letter stated only that "a prompt response from [the insured's] insurance company would be appreciated." Neither letter is sufficient to raise a triable issue of fact regarding whether Theodoratos exercised reasonable diligence. Indeed, the undisputed fact that Theodoratos' counsel never even requested from the insured the name of its insurance carrier (nor undertook additional efforts to identify the carrier) compels the conclusion that Theodoratos did not exercise reasonable diligence.

In sum, Supreme Court erred in denying plaintiff's motion because no triable issue of fact exists regarding whether the insured or Theodoratos provided timely notice of the accident to plaintiff. In light of our conclusion that plaintiff is entitled to summary judgment on that ground, we do not pass on plaintiff's remaining arguments in favor of reversal.

All concur except Mazzarelli, J.P. and Andrias, J. who dissent in part in a memorandum by Andrias, J. as follows:

ANDRIAS, J. (dissenting in part)

On January 29, 2005, Charlotte Theodoratos slipped and fell near the bottom of the stairs leading to the bathroom in the Hunan Ritz restaurant and was removed from the restaurant by ambulance on a stretcher, which was enough to trigger the restaurant's obligation under the subject policy to notify plaintiff insurer of Ms. Theodoratos's potential claim as soon as practicable (see Zadrima v PSM Ins. Cos., 208 AD2d 529 [1994], lv denied 85 NY2d 807 [1995]). We therefore agree that the restaurant failed to comply with that obligation when, despite two letters from Ms. Theodoratos's attorney suggesting that it forward her claim to its insurer, it did not notify plaintiff until October 2005, when it forwarded the summons and complaint that had been served on the Secretary of State in July. We disagree, however, with the majority's conclusion that Ms. Theodoratos and her attorney failed to exercise reasonable diligence in attempting to ascertain plaintiff's identity for purposes of independently placing it on notice of her claim pursuant to Insurance Law § 3420(a)(3).

It is well settled that in exercising this independent right to give notice to the insurer, an injured party should not be charged vicariously with the insured's delay and that, in determining the reasonableness of such notice, the notice required is measured less rigidly than that required of the insured and the sufficiency thereof is governed not by the mere passage of time but by the means available therefor (Appel v Allstate Ins. Co., 20 AD3d 367, 368-369 [2005]). Thus, "[w]here, as here, the insurer does not dispute receiving notice from its insured, the only issue with respect to the injured party [is] whether the efforts of the injured party to facilitate the [*5]providing of proper notice were sufficient in light of the opportunities to do so afforded [her] under the circumstances" (id. at 369, [internal quotation marks and citations omitted]. That Ms. Theodoratos never provided plaintiff with formal, written notice of the claim does not necessarily relieve plaintiff of its duty to indemnify the restaurant, inasmuch as plaintiff did eventually receive notice of the claim from the restaurant (see Cirone v Tower Ins. Co. of N.Y., 39 AD3d 435, 436 [2007], lv denied 9 NY3d 808 [2007]).

While Ms. Theodoratos and her attorney might possibly have done more (phone calls, personal visit, etc.), the case law does not so hold, nor can we say as a matter of law that their efforts were inadequate. They sent their first claim letter to the restaurant on March 8, 2005, shortly after they ascertained its corporate identity, and a follow-up letter on April 11, 2005 asking for a prompt response. When they received no response to those letters, they finally got the restaurant's attention by filing their summons and verified complaint with the Westchester County Clerk on July 12, 2005 and serving it on the Secretary of State on July 18, 2005 pursuant to Business Corporation Law § 306(b). Presumably the Secretary of State promptly sent a copy of the process to the restaurant, as required by the statute. Nevertheless, it was not until shortly after October 10, 2005, when plaintiff notified it that service on the Secretary of State had been made in July, that the restaurant notified plaintiff of Ms. Theodoratos's claim. However, even though the restaurant's notice may have been untimely as to it, that does not foreclose a finding that Mrs. Theodoratos's efforts were sufficient under the circumstances and the notice was timely as to her. Unlike automobile accidents, where it is easier to find the insurer of the offending vehicle, in order to ascertain the name of the restaurant's insurer some cooperation from the restaurant was required (cf. Cirone, 39 AD3d 435, supra). While this is not a case where the restaurant affirmatively misled the injured party (see Denneny v Lizzie's Buggies, 306 AD2d 89 [2003]), the restaurant nevertheless did nothing in response to the letters.

Thus, the motion court properly denied plaintiff's motion for summary judgment on its claim for a declaratory judgment that it is entitled to disclaim coverage, finding an issue of fact as to whether Ms. Theodoratos made diligent efforts to ascertain plaintiff's identity and independently give it notice of her claim. It should be left to the finder of fact to weigh the restaurant's failure to contact plaintiff until after it was served with process, and determine whether any further effort by Ms. Theodoratos to communicate with the restaurant would have been futile.

The motion court also correctly found a triable issue of fact as to whether, as plaintiff claims, it had effectively cancelled the policy almost a year before the accident for nonpayment of premiums. For present purposes, plaintiff's claim that it has no record of ever receiving or cashing the restaurant's check is rebutted by the affidavit of the restaurant's principal that he mailed a check for the premium prior to the cancellation date as corroborated by the restaurant's check logbook. Moreover, the invoice sent by plaintiff to the restaurant for pre-cancellation [*6]earned premiums was not clear that the policy had been cancelled, and the fact that plaintiff sent no further invoices to the restaurant relating to the subject policy is not dispositive.

Ins. Corp. of New York v Cohoes Realty Assocs., L.P.

Calendar Date: January 16, 2008
Before: Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ.

Gold, Stewart, Kravatz, Benes & Stone, L.L.P.,
Westbury (James F. Stewart of counsel), for appellant.
Robinson & Cole, L.L.P., New York City (Thomas J.
Donlon of counsel), for respondent.

MEMORANDUM AND ORDER
Cardona, P.J.

Appeal from an order of the Supreme Court (McNamara, J.), entered March 29, 2007 in Albany County, which granted a motion by defendant Travelers Indemnity of Illinois for summary judgment declaring that defendant Cohoes Realty Associates, L.P. is not an insured under an insurance policy issued to defendant Arcy Plastic Laminates, Inc.

On May 17, 1999, a fire occurred at commercial premises owned by defendant Cohoes Realty Associates, L.P., located in the City of Cohoes, Albany County. Although the exact cause of the fire was not determined, an investigation indicated that the damage was exacerbated due to the failure of the sprinkler system. The fire resulted in damage to various business property used by certain of Cohoes Realty's tenants, including defendant Arcy Plastic Laminates, Inc. At the time of the fire, Arcy was insured by defendant Travelers Indemnity of Illinois (hereinafter defendant) with a policy providing two types of coverage: commercial general liability insurance (hereinafter CGL) and business owners' property insurance. As relevant herein, Cohoes Realty was expressly named on an endorsement to Arcy's CGL coverage as an "additional insured," but not named to any extent under Arcy's business property coverage.

Following defendant's payment of some of Arcy's claims for property damage and business interruption pursuant to the business owners' property insurance coverage, Arcy, along with other tenants whose property was damaged in the fire, commenced a negligence action against Cohoes Realty, citing the defective sprinkler system, to recover damages not reimbursed by insurance. Defendant then brought a separate subrogation action against Cohoes Realty seeking reimbursement of the damages paid to Arcy under its policy. These actions were consolidated and later settled, subject to a stipulation that, among other things, plaintiff, Cohoes Realty's liability insurer, reserved the right to litigate certain issues related to defendant's policy. In connection with that stipulation, plaintiff commenced this action seeking, among other things, a judgment declaring that, due to Cohoes Realty's status as an additional insured under Arcy's CGL coverage, defendant was not permitted to sue Cohoes Realty in subrogation. Furthermore, plaintiff sought a ruling that defendant was obligated to reimburse plaintiff and/or share in the costs of defending and indemnifying Cohoes Realty in the actions brought against it by defendant, Arcy and the other tenants. Defendant's motion for summary judgment was granted and a declaration that Cohoes Realty was not its insured was issued, prompting this appeal.

Initially, we conclude that, since Cohoes Realty was only an additional insured under Arcy's CGL coverage and not named under its business owners' property coverage, Supreme Court properly held that defendant had no duty to defend herein (see Glens Falls Ins. Co. v City of New York, 293 AD2d 568, 570 [2002], lv dismissed 98 NY2d 764 [2002]; Federal Ins. Co. v Commerce & Indus. Ins. Co., 187 AD2d 278, 278-279 [1992], lv denied 81 NY2d 710 [1993]). We do not agree with plaintiff's contention that Cohoes Realty was entitled to a defense based upon the language of the "Additional Insured-Managers or Lessors of Premises" endorsement to Arcy's CGL coverage. Notably, not only does the CGL portion of Arcy's policy exclude property owned by the insured from its coverage (see Utica Mut. Ins. Co. v Watertown Indus. Ctr. Local Dev. Corp., 9 AD3d 836, 837 [2004]), but the endorsement cited by plaintiff provides that, as an additional insured, plaintiff was covered "only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [Arcy]." Contrary to plaintiff's argument, it is apparent that this language only refers to liability stemming from third-party actions, not any potential liability of the landlord or property owner (see generally ZKZ Assoc. LP v CNA Ins. Co., 89 NY2d 990, 991 [1997]; New York Convention Ctr. Operating Corp. v Cerullo World Evangelism, 269 AD2d 275, 276 [2000]; Maggio v Frank Mercogliano, Inc., 262 AD2d 612, 613 [1999]; see also Federal Ins. Co. v Commerce & Indus. Ins. Co., 187 AD2d at 278 [holding that it "does not accord with common sense" to require an insurer to defend the same party it is suing in subrogation]). Consequently, since Arcy's CGL policy did not cover Cohoes Realty under the subject circumstances, nor was there a reasonable expectation of such coverage, no factual issues regarding a duty to defend, or indemnify, on the part of defendant were presented (see Glens Falls Ins. Co. v City of New York, 293 AD2d at 570).

Next, we find unavailing plaintiff's interrelated argument that, given Cohoes Realty's status as an additional insured under Arcy's CGL coverage, defendant is estopped pursuant to the antisubrogation rule from seeking reimbursement for the damages that defendant already paid to Arcy. Notably, the antisubrogation rule prevents an insurer from commencing a suit against its own insured arising out of the risk for which the insured was covered (see Dominion Ins. Co., Ltd. v State of New York, 305 AD2d 779, 781 [2003]; see also Lodovichetti v Baez, 31 AD3d 718, 719 [2006]). Here, since Arcy's CGL insurance did not cover the subject loss and Cohoes Realty was not added to the business owners' property insurance, Cohoes Realty cannot be considered defendant's "insured" herein and the antisubrogation rule is simply inapplicable (see Glens Falls Ins. Co. v City of New York, 293 AD2d at 570).

We find similarly lacking in merit plaintiff's contention that a "waiver of subrogation" clause in the lease agreement between Cohoes Realty and Arcy bars defendant from seeking subrogation herein. As pointed out by Supreme Court, issues concerning the interpretation of the terms of Arcy's lease with Cohoes Realty were not preserved in the parties' stipulation. In any event, irrespective of the stipulation, the record does not support plaintiff's argument that questions of fact as to waiver exist. Not only does it appear that a condition in the lease required for waiver of subrogation to occur was not met (see e.g. Commerce & Indus. Ins. Co. v Admon Realty, 168 AD2d 321, 323 [1990]; Harlington Realty Corp. v S.L.G. Discount Corp., 162 AD2d 176, 177 [1990]), plaintiff failed to assert that waiver of subrogation was properly pleaded as an affirmative defense in the pleadings (see e.g. F.G.L. Knitting Mills v 1087 Flushing Prop,, 191 AD2d 533 [1993]).

The remaining issues raised by plaintiff, including its claim that summary judgment was prematurely granted, have been examined and found to be unpersuasive.

Mercure, Spain, Lahtinen and Kane, JJ., concur.

ORDERED that the order is affirmed, with costs.

Lee v Otsego Mut. Fire Ins. Co.

Tell, Cheser & Breitbart, Garden City, N.Y. (Kenneth R. Feit of
counsel), for appellant.
Johnson Liebman, LLP, New York, N.Y. (Charles D. Liebman
of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated May 21, 2007, as denied that branch of its motion which was for summary judgment dismissing the first cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff owns a two-family residence (hereinafter the premises) in Brooklyn. After a two-week vacation in January 2005, the plaintiff returned to find that his tenant, who had been notified that eviction proceedings were going to be commenced against him, and with whom the plaintiff had an acrimonious and contentious relationship, had moved out. The thermostat in the premises had also been turned down to its lowest setting, essentially shutting off the heat, causing a pipe in the attic to burst, and resulting in extensive water damage to the premises.

The plaintiff filed a claim under a casualty insurance policy issued by the defendant, Otsego Mutual Fire Insurance Co. (hereinafter Otsego). Otsego denied the claim on the ground that the policy did not cover loss due to a frozen pipe or the accidental discharge of water. The plaintiff then commenced this action alleging, inter alia, that his loss was the result of vandalism, a peril covered under the policy and that, therefore, Otsego had breached the contract of insurance by denying the claim. Otsego moved for summary judgment dismissing the complaint in its entirety. The Supreme Court denied that branch of Otsego's motion which was for summary judgment dismissing the first cause of action seeking to recover damages for breach of contract. Otsego appeals and we affirm insofar as appealed from.

To prevail on its motion for summary judgment dismissing the complaint, Otsego was required to establish its entitlement to judgment as a matter of law by demonstrating that the plaintiff's loss was not the result of vandalism, one of the insured perils. When construing an insurance contract, "the tests to be applied are common speech' and the reasonable expectation and purpose of the ordinary businessman'" (MDW Enters. v CNA Insur. Co., 4 AD3d 338, 340, quoting Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398). The common meaning of the term "vandalism" is the "malicious or ignorant destruction of public or private property" (Webster's New World Dictionary [2d ed. 1978]). Otsego's submissions do not establish that the plaintiff's loss resulted from a cause other than vandalism. Moreover, even if the term "vandalism" were "susceptible of two reasonable interpretations" (State of New York v Home Indem. Co., 66 NY2d 669, 671), and therefore was ambiguous, it must be construed in favor of the insured (see Gaetan v Fireman's Ins. Co. of Newark, 264 AD2d 806, 808). Accordingly, the Supreme Court properly denied that branch of Otsego's motion which was for summary judgment dismissing the first cause of action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
SPOLZINO, J.P., RITTER, SANTUCCI and CARNI, JJ., concur.