Coverage Pointers - Volume XI, No. 26

Dear Coverage Pointers Subscribers,

 

An absolutely beautiful night on Lake Erie.  I do love summer.

 

Congratulations to Jennifer Ehman
Jennifer is to be married over the July 4th weekend.  We extend to her our very best.

 

It's the Bottom of the Eleventh .
With this issue, Volume 11, Number 26, we conclude our eleventh year of publishing Coverage Pointers.  Our first issue, sent July 11, 1999 reviewed seven cases and was sent to our original subscription list of 25.  We now have well over 2000 direct subscribers and many, many more who read our publication on insurer intranets or at our website or are forwarded the issue by others. 

 

Thanks for your loyalty and on to Volume 12.

 

No Fault Reform

It is all about No Fault Reform.

 

The legislative session is winding down and will undoubtedly end when a budget is passed.  Under the leadership of Assembly Insurance Committee Chair Joseph D. Morelle and Senate Insurance Committee Chair Neil D. Breslin, two legislators with a palpable and admirable commitment and dedication to securing No Fault Reform in this legislative session, there have been ongoing meetings in Albany.  At this writing, discussions are continuing with the participants as they seek meaningful No Fault reform for insurers and policy holders alike. 

 

As reported in previous issues, attention is also being focused on the definition of "Serious Injury".  We are hopeful that any change in the threshold definition will reflect the balance sought by the Legislature when the statute was enacted over 35 years ago.  The goal is make certain that those injured in auto accidents can promptly and efficiently secure payments for medical bills and wages.  In exchange, only those with significant injuries are welcome to sue for damages for pain and suffering.  We seek to keep that door open while not throwing open the floodgates to cases that were not intended to be in the courthouse. 

 

Moreover, those at the table are working hard to make significant changes to the no fault statute in order to legislatively impact those decisions that have made it very difficult to efficiently defend claims for benefits on the merits.  Stay tuned.

"Danger, Will Robinson!"
The "must read" in this week's issue is the Fourth Department's split decision in Doherty v. Merchants Mutual, which was an unsuccessful attempt to secure extra-contractual damages in an excess-verdict case.  Watch this one carefully as the free ticket to the Court of Appeals spells uncertainty.  Merchants convinced a majority of the court - as a matter of law -- that it spend considerable time and expense in fully and fairly defending its insured but two dissenting justices would have had a jury decide instead.

Editor's Note:  Will Robinson, child start of Lost in Space was played by Billy Mumy, who at 56 years old, remains an actor and a specialist in voice-overs.  The Robot, a Class M-3 Model B9, General Utility Non-Theorizing Environmental Control Robot, was voiced by Dick Tufeld, a voice actor who is now 83 years old, living in Los Angeles.  June Lockhart, who played Will's mother, Dr. Maureen Robinson, also played the mother on the Lassie TV series and portrayed Dr. Janet Craig on Petticoat Junction.  [Now there's Uncle Joe, he's a' moving kind of slow .].

One Hundred Years Ago Today:
Congress passes the Mann Act, also known as the White Slave Traffic Act, which was ostensibly aimed at keeping innocent girls from being lured into prostitution, but really offered a way to make a crime out of many kinds of consensual sexual activity.

The outrage over "white slavery" began with a commission appointed in 1907 to investigate the problem of immigrant prostitutes. Allegedly, women were brought to America for the purpose of being forced into sexual slavery; likewise, immigrant men were allegedly luring American girls into prostitution.

The Congressional committees that debated the Mann Act did not believe that a girl would ever choose to be a prostitute unless she was drugged and held hostage. The law made it illegal to "transport any woman or girl" across state lines "for any immoral purpose." In 1917, the Supreme Court upheld the conviction of two married California men, who had gone on a romantic weekend getaway with their girlfriends to Reno, Nevada, and had been arrested. Following this decision, the Mann Act was used in all types of cases: someone was charged with violating the Mann Act for bringing a woman from one state to another in order to work as a chorus girl in a theater; wives began using the Mann Act against girls who ran off with their husbands. The law was also used for racist purposes: Jack Johnson, heavyweight champion of the world, was prosecuted for bringing a prostitute from Pittsburgh to Chicago, but the motivation for his arrest was public outrage over his marriages to white women.

The most famous prosecutions under the law were those of Charlie Chaplin in 1944 and Chuck Berry in 1959 and 1961, who took unmarried women across state lines for "immoral purposes."  Berry was convicted and spent two years in the prime of his musical career in jail. After Berry's conviction, the Mann Act was enforced only sparingly, but it was never repealed. It was amended in 1978 and again in 1986; most notably, the 1986 amendments replaced the phrase "any other immoral purpose" with "any sexual activity for which any person can be charged with a criminal offense."

From Audrey Seeley, Reigning Queen of No Fault:

I would encourage you to read the arbitration decision wherein the rapid stop resulting in the applicant hitting her head on the headrest and alleging sustaining injuries is an accident entitling the applicant to No-Fault benefits.  While admittedly the decision does not provide a clear picture of the facts nor does it indicate whether the issue of accident was ever argued it has sparked some heated debate within my office on whether this is an accident, as contemplated in Michaels v. City of Buffalo.  I welcome discussion and your reasoned thoughts at [email protected] .

 

I wish you and your family a Happy Fourth of July.  Also, best wishes to our own, Jennifer Ehman, in her wedding that weekend.  Her groom is a very fortunate man. 

 

Audrey

 

In This Week's Issue:

 

KOHANE'S COVERAGE CORNER
Dan D. Kohane
[email protected]

 

• Insured Has Carrier Over a Barrel; Obligation to Defend Intoxicated Frat Member for Rolling One Out the Window 
• Co-Employee Not Barred From Pursuing Uninsured Motorists Claim When Injury Occurs Outside of The Scope of Employment
• E&O Claim Against Broker Allowed to Proceed
• "Notice to Company" Endorsement Allowed Delayed Notice
• Divided Court  Refuses to Dismiss Suit that Seeks to Set Aside Release Based on Alleged Fraud
• In Application to Stay UM Arbitration, Presumption of Coverage, Established by DMV Record, Not Rebutted
• In One of the Rare Bad Faith Cases Reaching an Appellate Court in New York, a Split Court Dismisses a Bad Faith Case in An Excess Verdict Situation.  Read the Majority Opinion and Dissent in This Case
• A Plea to a Charge of Criminal Negligence Sufficient to Invoke Criminal Acts Exclusion
• Failure to List Reasons for Disclaimer Fatal; Reservation of Rights No Substitute
• No Coverage Available for Vehicle Owned by College-Based Daughter of the Insured, Particularly When It Was Furnished or Available for Insured's Son's Use
• Questions of Fact About Insured Status and Agent's Power to Bind Company by Certificate of Insurance Under Theory of Coverage by Estoppel
• Cross-Claims for Contribution, Common Law Indemnity, Contractual Indemnity and Failure to Provide Insurance Dismissed 

 

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras
[email protected]

• Medical Records Contradict Plaintiff's Expert's Conclusion Regarding Causation
• Defendant's Motion Does Not Address Claims in Bill of Particulars and Fails
• Claim of Aggravation of Preexisting Injuries Fails Absent Objective Medical Evidence
• Examination 5 Months After Accident Is Not "Contemporaneous"
•  And Yet Another Claim Fails for Lack of Contemporaneous Findings
•  Financial Hardship Adequately Explains 6-Month Gap in Treatment
•  Without Objective Findings, Causation Is Deemed Speculative and Conclusory
• Conclusion That Accident Aggravated Degenerative Condition, Without Explanation, Is Speculative
• Findings During Recent Examination Cannot "Be Stretched" to Remedy Deficiencies of Contemporaneous Examination:  But, Read the Two-Judge Dissent 

AUDREY'S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

 

ARBITRATION

• Quick Stop Resulting in Head Bumping Headrest Is Accident Within Insuring Grant
• Letter from Personal Injury Counsel Insufficient to Excuse Failure to Appear for IME 

LITIGATION

• Insurer's Failure to Respond to Notice to Admit Fatal at Trial
• Keep Your Facts Straight to Whom You Mailed the Bill
• You Think You Are Having a Bad Day? - Try Having to Litigate a Case You Thought Was Already Dismissed

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]

Of Property

• Policy Exclusion Which Explicitly Excludes Claims Arising Out of a Disputed Deed Applied to Bar Coverage
• After Three Years and Three Decisions, the First Department Continues Its Struggle with the Age Old Presumption Against Suicide

And Potpourri

• Breach of an Oral Contract to Procure Insurance Is Actionable Against the Non-Procuring Party
• Endorsement Providing the Insured Shall Incur Its Own Defense Costs Means What It Says
• Injured Party and Claimant's Request for a Declaration of Insurance Coverage, Pre-Judgment, is Deemed Premature

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal
[email protected]

 

• Did the District Court Abuse Its Discretion in Not Convening a New Arbitral Panel after an Arbitrator Resigns?
• District Court Applies Improper Standard of Review 

JEN'S GEMS
Jennifer A. Ehman
[email protected]

 

• Court Holds that 28 Day Delay in Disclaiming Coverage for Late Notice Was Unreasonable as a Matter of Law
• No Reasonable Excuse for Plaintiff's Delay in Notifying Insurer where Letter from Injured Party Requested Such Action
• Court Finds a Question of Fact as to Whether Insured used "Reasonable Care" to Maintain Heat in the Cottage
• Court Holds the Term "Document" in an Additional Insured Endorsement is Ambiguous 

 

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
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras
Jennifer A. Ehman

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-Richburg
Margo M. Lagueras
Jennifer A. Ehman

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

Index to Special Columns
Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Fijal’s Federal Focus
Jen’s Gems
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]

6/24/10      Massa v. Nationwide Mutual
Appellate Division, Third Department
Insured Has Carrier Over a Barrel; Obligation to Defend Intoxicated Frat Member for Rolling One Out the Window
David Massa, a college student, pushed or threw a 55-gallon oil drum out of a college window at a frat house.  It struck and injured another student who then sued him for negligence.  Massa pleaded guilty to disorderly conduct charges in the criminal courts.

His parents homeowners carrier, Nationwide, denied coverage on both criminal and intentional act exclusions. The proof provided to the court was that Massa was “visibly intoxicated" or, as one other student put it, “really drunk” at the time of the incident.   The “intentional acts” exclusion eliminates coverage for injury "caused intentionally by or at the direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct." The court found that the evidence did not conclusively establish that anyone was directly below the window when plaintiff looked outside, that he saw anyone below, or that he knew there was anyone there when he pushed or threw the drum outside.

Nationwide also argued that Mass’s plaintiff's actions were nonetheless intentional within the meaning of the exclusion because the resulting harm "'was inherent in the nature and force'". However, as no injuries would have occurred if no one had been below the window, the question as to whether plaintiff knew anyone was there prevents a determination, as a matter of law, that "'to do the act was necessarily to do the harm which was its consequence'".

Under the criminal act exclusion, defendant's policy does not cover injury "caused by or resulting from an act or omission which is criminal in nature and committed by an insured." Other than indicating that conduct may fall within this exclusion "regardless of whether the insured is actually charged with, or convicted of a crime." Disorderly conduct is a violation rather than a felony or misdemeanor.  In Nationwide’s view, Massa’s conduct was criminally reckless.  The court finds that whether he put someone else at risk is a fact question.

6/23/10                In re IDS Property Casualty Insurance Co. v. Wynter
Appellate Division, First Department
Co-Employee Not Barred From Pursuing Uninsured Motorists Claim When Injury Occurs Outside of The Scope of Employment
The record established that, at the time of the accident Wynter was a passenger in an uninsured motor vehicle. He and the driver of the vehicle, a fellow employee, were engaged in a personal errand, not related to their employment.  Accordingly, Workers Compensation is not the exclusive remedy for recovery.

6/22/10      Jual Construction Ltd. v. A.C. Edwards, Inc.
Appellate Division, Second Department
E&O Claim Against Broker Allowed to Proceed
An insurance agent or broker may be held liable under theories of breach of contract or negligence for failing to procure insurance if there is proof that (a) it breached the agreement or (b) that it failed to exercise due care in the transaction. An application by the broker that the claim against it should be dismissed is rejected because there was a failure of proof demonstrating that entitlement.  The proof offered is unclear from the decision.

6/22/10                 Nassau Plaza Associates, L.P., v. Greater New York Mutual
Appellate Division, Second Department
“Notice to Company” Endorsement Allowed Delayed Notice
Carrier denied on late notice and the insured submitted evidence demonstrating, that they provided the defendant with timely notice under the terms of the subject insurance policy. There was a “Notice to Company” endorsement.  In this case, the notice was given after worker who allegedly was injured on their property had exhausted all avenues of administrative and judicial review of the rejection of his claim for Workers' Compensation benefits.
Editor’s Note:  We were interested in the language of the “Notice to Company” endorsement – the language of which was not reported in the decision – but our e-mail to counsel seeking the wording has not yet generated a response.

6/18/10      Litvinov v. Hodgson and New York Central Mutual
Appellate Division, Fourth Department
Divided Court  Refuses to Dismiss Suit that Seeks to Set Aside Release Based on Alleged Fraud
Plaintiff was hurt in July 2003 when he fell while working on a porch located on rental property owned by Hodson, managed by Renna and insured by New York Central Mutual (NYCM). Plaintiff was employed by Laspro.  Two months after the accident, the NYCM claims adjuster settled the claim with the plaintiff who signed a release of the claim against Hodson and Renna for $4,000. Later, plaintiff started this action, seeking to rescind the release based on a claim of fraud by NYCM and the adjuster.

The Fourth Department found that there was a question of fact as to whether the adjuster made false statements directly to the plaintiff, and as such a three judge majority refused to dismiss the claim. Fraud may be found  where a false representation is made to a third party, resulting in injury to the plaintiff.

The plaintiff brought forth proof that the claims adjuster may have made false representations to the plaintiff’s employer, who was acting as an intermediary in negotiations. The claimed fraud were statements indicating that NYCM had no liability, that plaintiff did not need an attorney, and that the $4,000 paid by NYCM to plaintiff would be in addition to workers' compensation payments. Laspro relayed that information to plaintiff before the release was signed.

Plaintiff’s request for discovery of the NYCM claim filed was denied though, as material prepared in anticipation of litigation (see CPLR 3101 [d] [2]; Lamberson v Village of Allegany, 158 AD2d 943). Nevertheless, material prepared in anticipation of litigation may be subject to disclosure upon a showing of substantial need and the inability "without undue hardship to obtain the substantial equivalent" of the material from another source.  Since the adjuster’s state of mind may be reflected in the notes and since he did not have a clear recollection of the events, a portion of that file may be subject to discovery and the case is remanded.

The two dissenting judges noted that the plaintiff acknowledged in his deposition that he read and understood the release, and knew he would be receiving $4000.  There is no proof of duress, illegality, fraud or mutual mistake.

The fact that the plaintiff now believes his case is worth more and that he didn’t understand that there would be a Workers Compensation Lien does not establish a “mutual mistake” but instead a unilateral mistake that does not justify rescission.

6/15/10      In the Matter of GEICO v. O’Neil

Appellate Division, Second Department
In Application to Stay UM Arbitration, Presumption of Coverage, Established by DMV Record, Not Rebutted

AIU moved to stay uninsured motorist (SUM) arbitration.  AIU conceded that GEICO provided prima facie evidence establishing that AIU insured the tortfeasor’s car by submitting a New Jersey Department of Motor Vehicles record (hereinafter DMV)). The burden then shifted to AIU to prove that the offending vehicle was never insured by it or that any policy covering the offending vehicle had been canceled prior to the accident

 

The affidavit of a junior underwriter did not rebut the DMV record submitted by GEICO, which indicated that the offending vehicle was insured by AIU on the accident date. Moreover, the junior underwriter's affidavit did not provide any grounds upon which to find that the information set forth in the DMV record relating to the offending vehicle was erroneous.

 

611/10      Doherty v. Merchants Mutual Insurance Company

Appellate Division, Fourth Department

In One of the Rare Bad Faith Cases Reaching an Appellate Court in New York, a Split Court Dismisses a Bad Faith Case in an Excess Verdict Situation.  Read the Majority Opinion and Dissent in This Case

It is rare that we get to report on a bad faith case in New York.  In the last three years, not a single bad faith verdict against a carrier has been affirmed by a New York appellate court and few have been considered. 

 

Doherty had sued Fitzpatrick in an auto accident case claiming that the car Fitzpatrick was operating rear-ended hers.  There was a verdict in excess of the liability limits of the policy issued to Fitzpatrick by Merchants Mutual. Doherty took an assignment of Fitzpatrick’s bad faith claim against Merchants and sued the carrier as assignee, seeking the amount of damages in excess of the Merchants’ policy.  In a 3-2 decision, the Fourth Department affirmed the judgment dismissing the bad faith claim, setting the stage for a review by the Court of Appeals.

 

To prevail in a bad faith case in New York, the plaintiff must establish that the insured lost an actual opportunity to settle the action at a time when all serious doubts about liability were removed and that the carrier acted with gross disregard for the insured’s interests, i.e. that the insurer “engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that the insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted." 

 

In this case, the trial judge had denied Fitzpatrick’s motion for summary judgment on the No Fault threshold and granted the Doherty’s motion establishing liability for the rear-end collision.

The policy limits on the Fitzpatrick policy were $300,000 and during trial, Doherty’s lawyers demanded the case be settled within the limits. The majority reminded the parties that “an insurer cannot be compelled to concede liability and settle a questionable claim simply because an opportunity to do so is presented” citing to the key Court of Appeals case in Pavia, 82 NY2d at 454). The insurer demonstrated that it investigated the claim in the underlying action and arranged for a physical examination of plaintiff to determine the extent of her alleged injuries and whether they constituted a serious injury. The defense IME opined that the plaintiff had a "moderate, partial, temporary disability for recreational activities and activities of daily living in the home" and surveillance tapes were introduced which were favorable to the defense.

The insurer further demonstrated that it participated in settlement negotiations prior to and during the trial and that Supreme Court was actively engaged in the settlement negotiation process. Prior to trial, plaintiffs reduced their demand to $250,000 and, during the trial, they further reduced their demand to $240,000. Defendant thereafter increased its settlement offer from $25,000 to $55,000 and the defense proposed a high-low settlement offer as well which was rejected.   

The majority concluded that Merchants established that it did not lose an actual opportunity to settle the claim when all serious doubts about his liability were removed and it was clear that the potential recovery far exceeded the insurance coverage and thus that it did not act with gross disregard for Fitzpatrick's interests.

Two justices dissented holding that there was a question of fact on whether the insurer's good faith obligation has been met.  Proof of bad faith, the dissent argued, “requires the careful and collective evaluation of a confluence of factors and inferences uniquely within the province of a jury”.

The dissenting justices note that the verdict against the defendant Fitzpatrick was $740,000 and defendant's highest settlement offer was $55,000.

On the issue of the likelihood that a verdict would exceed the policy limit, the defense had concluded, by early 2003, that it had no legal defenses to the negligence claim. The claims professional handling the file knew that a summary judgment motion on serious injury could not be granted because the IME doctor had found the plaintiff disabled over a year after the accident. Accordingly, the only issues for the jury would be the threshold question and the amount of damages to be awarded.

The only issues to be resolved were whether Doherty sustained a threshold serious injury and, if so, the damages to be awarded.

The dissent pointed out that Doherty was 27 years old in December 2003 and had a life expectancy of 54.4 years so the potential exposure for future pain and suffering and disability was 54.4 years of future pain and suffering and disability. The jury awarded $500,000 for future pain and suffering.

The carrier’s file did not establish that it had evaluated and actually assigned a potential jury verdict value, as compared to a settlement value, to Doherty's personal injury claim. Indeed, defendant's claim representative admitted that she never assigned a value or even a value range to the claim and could not recall how she arrived at the $10,000 settlement offer that remained in place until the first day of trial, when it was increased to $25,000. The record does not contain evidence of any analysis by defendant of the potential for high-end jury verdicts in the trial venue or any examination of jury verdict reports in cases with similar injuries in similar venues. Thus, in its view, on this record, Merchants failed to satisfy one of the most fundamental factors essential to a finding of good faith.

The dissent also opined that the defense did not undertake an IME with respect to the shoulder injury so it could not rebut the plaintiff’s medical proof.  There was also nothing in the claims file evaluating how the composition of the jury might play into the verdict.  Interesting, the dissent indicated that “defendant made no evaluation of the jury composition, which included four women who might understand and sympathize with Doherty's lack of choice in engaging in those activities while Doherty's husband worked at two jobs.” 
Editor’s note:  I thought the jury wasn’t supposed to consider sympathy.  Ahh well.

Finally, on the first day of trial, defendant's counsel advised that he needed to revise his exposure opinion and that, if the jury believed that Doherty needed surgery, the potential exposure was above $250,000 but the highest offer was $55,000.  The dissent argued that the low offers led to the termination of settlement negotiations and foreclosed the opportunity for settlement.  The dissent further argued that the high-low offer made four days after the trial commenced does not eradicate the earlier potential bad faith.

Finally, the dissent rejected the defense argument that the trial justice’s comments during settlement negotiations should be another deciding factor in its favor.

The dissent believed the complaint should not have been dismissed, but instead, the jury should have been given the opportunity to consider the evidence of bad faith.
Editor’s Final  Note:  Both the majority and dissent agree on the standard.  Bad faith, in New York, is not established by “guessing wrong” but by a pattern of conduct that evinces a pattern of behavior demonstrating a gross disregard.  Here, it appears that the carrier investigated the case, hired competent IME doctors, conducted video surveillance and placed a value on it based on that investigation. 

However, we can expect further review.   

6/11/10      Gruninger v. Nationwide Mutual Insurance Company

Appellate Division, Fourth Department
A Plea to a Charge of Criminal Negligence Sufficient to Invoke Criminal Acts Exclusion

Harmer (could you ask for a better name for a defendant) was insured under a Nationwide homeowners policy. Gruninger was shot by Harmer while they were deer hunting.  Nationwide disclaimed coverage to Harmer based on a criminal acts exclusion: "caused by or resulting from an act or omission [that] is criminal in nature and committed by an insured" as Harmer had pleaded guilt to Assault in the Third Degree.

The Fourth Department agrees that the shooting incident falls within the criminal act exclusion in the homeowners' policy and such an exclusion is not barred by public policy. In an earlier case, Slayko the court left open the possibility that a broad criminal activity exclusion might someday work an injustice when the prohibited act involves little culpability or seems minor relative to the consequent forfeiture of coverage.  While that may be so, this one does not fall within the scope of triviality. This was a plea to a crime of criminal negligence.
Editor’s Note:  The action here was brought by the injured party, Gruninger.  As a reminder, in New York, an injured party does not have standing to commence a declaratory judgment action.  It does secure standing to bring a direct action against the tortfeasor’s carrier if and when it obtains a money judgment against the tortfeasors/insured.  That was the procedural posture of this appeal, a direct action pursuant to Section 3420(a) of the Insurance Law after a judgment was obtained by Gruninger against Harmer.

6/11/10                Henner v. Everdry Marketing and Gemini Insurance

Appellate Division, Fourth Department

Failure to List Reasons for Disclaimer Fatal; Reservation of Rights No Substitute

Henner sued Everdry Marketing and Management (“EMM”) and Everdry Management Services (“EMS”) claiming that both defendants discharged petroleum on its site in violation of certain provisions of the Navigation Law.  Gemini Insurance Company (Gemini), issued an insurance policy to EMS, CNN insured EMM.

 

On appeal, Gemini claimed late notice by EMS in notifying it of the discharge.  However, Gemini never raised that policy breach in its disclaimer letter so it cannot rely upon it as a ground for disclaiming coverage. The matter was remitted to the court below to consider the other exclusions raised by Gemini, which had not yet been fully analyzed by the plenary court.

 

With respect to CNA, that carrier sent letters purporting to reserve their rights to disclaim coverage, a reservation of rights does not qualify as a timely disclaimer The CNA defendants did not meet their initial burden with respect to that part of their motion, inasmuch as the evidence submitted by them in support of their motion in fact established that they did not disclaim coverage based on plaintiffs' alleged untimely notice of the accident, and thus they waived that defense.
Editor’s Note:  Did anyone in this appeal happen to realize that these were property damage cases and thus the timely disclaimer requirements of Insurance Law Section 3420(d) were not applicable?  When it became clear that late notice was not raised in a disclaimer letter, why didn’t the carriers revise their disclaimer letter to assert it?  There is no obligation to disclaim promptly in property damage cases, only bodily injury and wrongful death cases.

 

6/11/10      Konstantinou v. Phoenix Insurance Company

Appellate Division, Fourth Department
No Coverage Available for Vehicle Owned by College-Based Daughter of the Insured, Particularly When It Was Furnished or Available for Insured’s Son’s Use
David was driving a Chevrolet owned and insured by his sister Tynette.  The car crashed into a vehicle operated by Stavros Konstantinou and killed Lorin Konstantinou, a passenger. Stavros, suing for his own injuries and as administrator of Lorin’s estate sued David and Tynette and their mother Brenda Henderson. Stavros took judgment and sought to enforce that amount in excess of Tynette’s coverage from the Phoenix, Brenda’s insurer. .

Under the Phoenix policy, coverage is extended to both “your car” and “non-owned” cars. The policy listed Henderson as the only insured and a different Chevrolet as “your car”.  Thus the vehicle David was operating was not “your car” under the Phoenix policy.

The policy also defined a "non-owned car" as one not owned by or furnished or available for the regular use of you or a relative." The policy further explained that "You and your mean the person [listed as the named insured on the declarations page, i.e., Henderson] . . . Relative means your relative, residing in your household."

The court found that the Thurston siblings were Henderson’s relatives and that they resided in her household.  A person is a resident of a household for insurance purposes if he or she " lives in the household with a certain degree of permanency and intention to remain' " Although Tynette Thurston lived at college at the time of the accident, defendant submitted evidence in support of the motion establishing that she was a resident of the household inasmuch as she lived with Henderson during the summers, received mail at Henderson's house, stayed there every other weekend, and listed that address on the Celebrity's title and insurance.

Not only that , even if Tynette was  not a relative, David had unrestricted access to the Chevrolet he was driving at the time of the accident and that was another reason the car he was using was not a ‘non-owned car”.

Finally, since the issue before the court dealt with the grant of coverage, and not an exclusion or policy condition, a late disclaimer does adversely impact the carrier’s right to deny coverage.  Coverage cannot be created by a late disclaimer.

6/11/10                Sevenson Environmental Services v. Sirius America Ins. Co.
Appellate Division, Fourth Department
Questions of Fact About Insured Status and Agent’s Power to Bind Company by Certificate of Insurance Under Theory of Coverage by Estoppel
Sevenson and Goodyear commenced this action seeking a declaration that Sirius was obligated to defend them in an underlying personal injury action. In a prior appeal the court determined that Sirius validly disclaimed coverage for defendant Thomas Johnson, Inc. (TJI) in the underlying action based on TJI's late notice of the construction accident.

On this appeal there were several related issues.  First, there was a question as to whether Sevenson and Goodyear were actually insured by Sirius.  Sevenson and Goodyear established that their names appeared on a certificate of insurance and there was also an additional insured endorsement naming persons or organizations "as on file with company." In opposition to the motion, Sirius raised an issue of fact by submitting an affidavit from an employee of its third-party claims administrator, UTC who averred that TJI's underwriting file did not contain any request or notice to name plaintiffs as additional insureds on the policy.

However, since there was still an issue of whether Sirus’ file possessed such documentation, there is an issue of fact to be resolved by the court below.

As to the Certificate of Insurance, it cannot create coverage.  However, the Fourth Department held that a carrier may be estopped from denying coverage to that party where the party reasonably relies on the certificate of insurance to its detriment IF the certificate is issued by the company itself or its authorized agent.  

In this case, the plaintiffs did not establish that the Certificate, issued by Overdorf, TJI’s insurance broker, was issued by Sirius’ agent. Overdorf claimed that North Island, a company it described as an agent of Sirius, authorized it to issue the certificate.  However, testimony by Overdorf’s employee cannot be used to establish that it is an agent of Sirius or that North Island was an agent.  

However, Sirius did not sufficient prove the lack of agency to justify summary judgment in its favor.  

Without having established themselves as insureds of Sirius, and not having a judgment against the Sirius insured, TJI, Sevenson and Goodyear do not have standing to challenge the timeliness of Sirius’ disclaimer at this time.
Editor’s Note:  The Fourth Department has always had some affection for “coverage by estoppel,” that theory which permits reliance upon a certificate of insurance to create coverage, if the certificate is issued by the insurer or its authorized agent.

6/11/10      Barto v. NS Partners, LLC
Appellate Division, Fourth Department

Cross-Claims for Contribution, Common Law Indemnity, Contractual Indemnity and Failure to Provide Insurance Dismissed

NS, the hotel owner, hired Johnson, as general contractor, for a construction project.  Johnson hired Ferguson as the electrical subcontractor.  Barto, an employee of Johnson, was installing acoustic ceiling tiles when he sustained injury.

 

Insofar as the indemnity and insurance claims were concerned, the court found that the cross-claims against Ferguson should be dismissed because there was no evidence that Ferguson was negligent (thus leading to dismissal of the claims for contribution), no evidence that Ferguson controlled the work site (thus leading to a dismissal of the cross-claim for common law indemnification) and no evidence that the injuries arose out of Ferguson’s work (thus leading to a dismissal of the contractual indemnity cross-claims, which required that Ferguson would indemnify the owner, NS Partners, "from any loss because of injury or damage to person or property arising or resulting from the performance of the work hereunder").

 

With regard to the claim that Ferguson failed to procure insurance naming NS Partners as an additional insured, Ferguson met its initial burden by submitting a certificate of liability insurance naming Johnson and Namwest, the parent company of NS Partners, as additional insureds on a primary basis.  No evidence was offered to the contrary, so that cross-claim was dismissed as well.

Editor’s Note:  While the motion was granted with respect to the provision of coverage, one wonders why Ferguson didn’t offer a copy of the policy, rather than the Certificate?  No harm.  No foul.

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEWYORK NO FAULT
Margo M. Lagueras
[email protected]

6/24/10                Clemmer v. Drah Cab Corp.
Appellate Division, First Department
Conclusions in Sworn Affirmation that Relies on Unsworn Reports Is Inadmissible

On appeal, the trial court is affirmed, the complaint dismissed, and the Appellate Court reiterates that conclusions reached in reliance on unsworn reports, even if the conclusions are in a sworn affirmation, are inadmissible if the other party’s experts, here the defendants’, do not submit those unsworn reports with their own reports, or rely on them.  Only if the unsworn reports are referred to in the expert affirmations of both the defendant and the plaintiff will those reports be admissible. 

 

Here, the defendants’ experts submitted their own sworn MRI reports, which found no herniations or bulges.  They also did not rely on the unsworn report of the plaintiff’s treating physician.  The sole dissenting judge would have allowed the sworn affirmation of the plaintiff’s examining physician to be the “additional evidence” needed to make the unsworn MRI report admissible.  The majority, however, notes that the examining physician merely “agreed” with the unsworn report and that such “bootstrapping” should not be used to bring inadmissible evidence before the court.  In addition, the majority points out that the examining physician made no reference to the defendants’ sworn MRI report which indicated no bulges or herniations and, in fact, his examination was only performed after the defendants moved to dismiss the complaint (more than two years after the accident) and lacked any objective medical basis for relating the injury to the accident.  The quantitative findings were too remote to be deemed contemporaneous and establish causation and thus the conclusions were “conclusory assertions tailored to meet statutory requirements.”

 

6/17/10                Foley v. Cunzio
Appellate Division, Third Department
Medical Records Contradict Plaintiff’s Expert’s Conclusion Regarding Causation

Defendant met his initial burden by submitting the plaintiff’s medical records and the IME of his neurosurgeon who, after examining the plaintiff and reviewed her lumbar MRI, concluded there was no evidence of herniation and that the complained of lower back pain was due to degenerative disc disease.  He found excellent lumbar range-of-motion and noted that the plaintiff was involved in another motor vehicle accident 3 years earlier after which she complained of, and treated for, lower back pain.  This evidence was sufficient to shift the burden to the plaintiff and, because she had complained of lower back pain prior to the accident at issue, she was required to adequately address her pre-existing back condition.

In opposition, the plaintiff submitted the affidavit of her neurologist who, based on nerve conduction studies, concluded that the plaintiff sustained a lumbar radiculopathy in the accident.  In support of his conclusion, he stated that there was no evidence of any significant symptoms prior to the accident and the symptoms were consistent with impact on the left side.  The court found that the medical records submitted by the defendant directly contradicted his conclusion as there were numerous references to complaints of lower back pain and treatment.  The court additionally found the affidavit failed because it did not address the degenerative disc disease shown in the MRI.  Furthermore, the neurologist’s findings of “full” flexion and extension on examination in April, and “good” flexion and extension in August, were not explained, nor did he sufficiently address the plaintiff’s pre-existing condition.  As such, there was no objective basis for relating the plaintiff’s condition to the accident.

 

6/15/10                Torres v. Cannella
Appellate Division, Second Department
Defendant’s Motion Does Not Address Claims in Bill of Particulars and Fails

Plaintiff was involved in a 3-car accident.  Defendant Reyes moved for summary judgment but did not sufficiently address the plaintiff’s 90/180-day claim as set forth in her verified bill of particulars.  Defendant Cannella additionally moved on the ground that she was not at fault.  She similarly failed on the 90/180-day claim, and also failed to eliminate all issues of fact with regard to her alleged negligence.  Both motions fail.

 

6/15/10       Sternberg v. Sipzner
Appellate Division, Second Department
Claim of Aggravation of Preexisting Injuries Fails Absent Objective Medical Evidence

Here, the plaintiff appealed and lost because he failed to submit objective medical evidence by which to measure the alleged aggravation to his pre-existing injuries or any new injuries.  He also did not submit competent medical evidence in support of his 90/180-day claim.

 

6/15/10                Resek v. Morreale
Appellate Division, Second Department
Examination 5 Months After Accident Is Not “Contemporaneous”

Without a contemporaneous examination, the plaintiff cannot raise a triable issue of fact under the permanent consequential or significant limitation of use categories.  Here, the plaintiff alleged injury to his left shoulder.  The affirmation submitted did not indicate any findings from the initial examination and “restricted” range-of-motion during the recent examination.  The doctor did not, however, set forth any of the objective tests he used in reaching his conclusion.  He also failed to explain the contradiction between his findings and those of another of plaintiff’s treating physicians who did not find any limitations in the plaintiff’s left shoulder less than a month after the accident.  Thus the plaintiff did not provide any evidence of any limitations that were contemporaneous and the affirmed medical reports of an orthopedist, who examined the plaintiff five months after the accident, were not contemporaneous and could not correct that failure.

 

6/15/10                Delarosa v. McLedo
Appellate Division, Second Department
And Yet Another Claim Fails for Lack of Contemporaneous Findings

Plaintiff’s recent examination revealed significant limitations in the cervical and lumbar regions.  However, the most “contemporaneous” findings proffered were from an examination performed more than a year after the accident, and that clearly will not enable the plaintiff to raise an issue of fact to defeat summary judgment.

 

6/11/10                Garza v. Taravella
Appellate Division, Fourth Department
Financial Hardship Adequately Explains 6-Month Gap in Treatment

In her affidavit, the plaintiff explained that the 6-month gap in her treatment was due to the fact that she could not afford to personally pay the bills and the court found no evidence in the record that she was aware that no-fault would have paid her bills during that period. 

 

Defendants motion also failed with respect to the permanent consequential and significant limitation of use categories because the affidavit of her chiropractor and affirmations of her physicians stated that she sustained neck and back injuries that required surgery and would continue to restrict her cervical range-of-motion, rendering her permanently disabled.  This was sufficient to counter the defendants’ submissions indicating the injuries had resolved and the issue of preexisting conditions was only raised on appeal and therefore not considered.

 

6/11/10                Lauffer v. Macey
Appellate Division, Fourth Department
Without Objective Findings, Causation Is Deemed Speculative and Conclusory

Plaintiff was rear-ended and alleged four categories in her complaint and the bill of particulars: permanent loss of use, permanent consequential and significant limitation of use, and 90/180-day.  On appeal, the court found that the trial court erred in granting defendants’ motion only with regard to the permanent loss of use category and that it should have been granted in its entirety.  In opposition to defendants’ affirmed report which concluded there was no objective evidence of serious injury, the plaintiff submitted certified medical records.  However, those records did not contain any objective findings so the conclusion that the plaintiff’s symptoms were caused by the accident were speculative and conclusory.

 

6/10/10                Nieves v. Castillo
Appellate Division, First Department
Conclusion That Accident Aggravated Degenerative Condition, Without Explanation, Is Speculative

In opposition to the defendants’ motion, the plaintiff’s submissions failed to raise an issue of fact as one of her physicians did not address causation, and another simply opined that the accident aggravated the degeneration in her cervical spine but without any explanation.  That opinion was, therefore, speculative.  In addition, neither physician addressed the defendant’s expert’s report of normal lumbar, shoulder and knee findings.  With regard to her claim under the 90/180-day category, the plaintiff admitted missing only 6 weeks of work and failed to present any evidence of causation or medical evidence of inability to perform daily activities, or documentation from her employer.

 

6/8/10                  Perl v. Meher
Appellate Division, Second Department
Findings During Recent Examination Cannot “Be Stretched” to Remedy Deficiencies of Contemporaneous Examination:  But, Read the 2-Judge Dissent

On appeal, the trial court is reversed and the defendants’ motion is granted, over a 2-judge dissent which reflects some of the current hot issues.

 

First, the majority decision:  Defendants’ orthopedist gave a detailed explanation and observations in support of his conclusion that the plaintiff’s range-of-motion restrictions were self-imposed and there were no objective findings of impairment.  The court reiterated the standards both defendants and plaintiffs are held to in threshold serious injury motions:  numerically quantified ROM with comparison to the norm, based on identified objective testing.  In addition, plaintiffs must demonstrate limitations both in contemporaneous and recent examinations.  The majority determined that the plaintiff’s physician failed to identify the tests used, the numerical results, or provide any comparison with what would be normal range-of-motion during the examination 6 days after the accident..  The examination 2 years later by the same physician quantified the restrictions based on identified objective tests and compared them with the norm, but this could not “be stretched” to remedy the deficiencies in the contemporaneous findings because, while the “norm” might be the same, the findings themselves, and the tests used, could be different from one exam to the other. 

 

Having established entitlement to summary judgment, the burden shifted to the plaintiff to raise an issue of fact which here, plaintiff failed to do.  Plaintiff’s physician’s affirmation based on a qualitative assessment was not sufficient because, among other things, it did not identify the objective tests used during the contemporaneous examination.  In addition, the court points out that the plaintiff did not raise the issue of qualitative assessment in his appellate submission.

 

The 2-judge dissent:  Here the opinion is that the majority holds the plaintiff to a standard of medical proof that is not stated anywhere in § 5102(d) and thus bars a potentially meritorious claim.  The dissent notes that the majority assumes that an injured person, who presents just days after an accident for treatment, does so already in anticipation of litigation.  No case law dictates that an initial report must be recorded in a specific manner.  “Rather, so long as the affirmation of the treating physician indicated that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff’s range or motion, the threshold set forth in Insurance Law § 5102(d) should be deemed to be satisfied * * * To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effectively turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation.”  In contrast, a defendant’s expert sees an injured plaintiff solely for purposes of litigation.  This puts a plaintiff at a disadvantage.

 

The dissent notes that in his affirmation, the plaintiff’s physician stated that there were “numerically and objectively determined” ROM restrictions of the knees, cervical and lumbar spine and which were causally related to the accident since the plaintiff had no pre-existing similar symptoms.  The affirmation also stated that these restrictions were significant and permanent.  During the contemporaneous examination, it was noted that ROM of the cervical and lumbar spine was 60% of normal and knee extension was “decreased”.  The physician’s recent examination detailed the tests, results and norms and the dissent found that the affirmation, read as a whole, should be deemed sufficient.  The remedy, according to the dissent, is to test the qualitative assessment during cross-examination.

Note:  We will stay tuned to see if this one goes to the Court of Appeals.

 

AUDREY’S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

ARBITRATION

6/17/10                Applicant v. Adirondak Ins. Exchange

Arbitrator Thomas J. McCorry, Erie County
Quick Stop Resulting in Head Bumping Headrest Is Accident Within Insuring Grant

The Applicant, eligible injured person, was the passenger in a motor vehicle operated by her [former] friend of six years.  The Applicant contends that the only thing she remembers is that her friend stopped very suddenly for a light before turning right into a plaza for something to eat.  The Applicant further claimed that her head went forward and back very hard into the headrest.  The Applicant never told her friend that she had any complaint of an injury and the friend apparently did not even notice what occurred to the Applicant.

 

The friend’s version is that nothing occurred with the drive being uneventful.  The Applicant never told her friend until the next day that she was injured and wanted to make a claim.

 

The Applicant asserts that the day after this event she felt nauseous and treated at the emergency room.  Thereafter, she treated with her primary care physician and a chiropractor as well as a neurologist for unspecified injuries.

 

The assigned arbitrator determined that Applicant was involved in an accident which entitled her to No-Fault benefits.

 

6/14/10                A. Marc Tetro, MD, et. al. v. Allstate Prop. and Cas. Ins. Co.

Arbitrator Thomas J. McCorry, Erie County
Letter from Personal Injury Counsel Insufficient to Excuse Failure to Appear for IME

The Applicants’ assignor’s entire No-Fault claim was denied based upon the failure to appear for two scheduled independent medical examinations.  The Applicant submitted a hearsay statement from the personal injury counsel that the assignor did not receive the examination notices.  The assigned arbitrator determined that this is insufficient without the support of either testimony from the assignor or an affidavit from the assignor.  Accordingly, the insurer’s denials were upheld.

LITIGATION

6/21/10               Central Nassau Diagnostic Imaging, P.C. a/a/o Logan Jean Pierre v. GEICO

Appellate Term, First Department
Insurer’s Failure to Respond to Notice to Admit Fatal at Trial

Plaintiff served the insurer with a notice to admit seeking an admission that the two bills attached to the notice were “true and accurate” copies of the bills the insurer received and that the bills were not paid by the insurer.  The insurer failed to respond to the notice to admit.  The plaintiff at trial introduced the notice into evidence together with the documents attached to the notice and sought as well as received a directed verdict.

 

On appeal, the insurer argued that the plaintiff cannot rely upon the notice and its annexed documents to establish its prima facie case.  The plaintiff was still required at trial to call a witness to lay the foundation for admission of the bills into evidence.

 

The appellate court disagreed and held that the facts sought to be admitted were whether the bills were true and accurate copies of the bills the insurer received as well as the bills were unpaid.  The fact that these were material to plaintiff’s prima facie case and determinative of its claim were of no consequence.

 

6/11/10                Alur Med. Supply a/a/o Freddy Cepeda v. GEICO Ins. Co.

Appellate Term, Second Department
Keep Your Facts Straight about to Whom You Mailed the Bill

The plaintiff’s motion for summary judgment was properly denied as it failed to establish its prima facie case.  Specifically, the plaintiff’s billing manager’s affidavit attested to sending the medical bills to a different insurer than that listed on the certificate of mailing.

 

6/11/10                Magnezit Med. Care, P.C. a/a/o Rosario Raul v. Lumbermens Mut. Cas. Co.

Appellate Term, Second Department
You Think You Are Having a Bad Day? – Try Having to Litigate a Case You Thought Was Already Dismissed.

Plaintiff commenced an action in Queens County, Civil Court, for service dates from November 12, 2001 through March 29, 2002.  After four years of inactivity the insurer served a 90 day demand.  After the 90 days expired the insurer moved to dismiss for failure to prosecute.  The motion was granted on default but the order was silent as to whether it was decided on the merits and with prejudice.  Accordingly, it was dismissed not on the merits and without prejudice.

 

The plaintiff then commenced an action in King County, Civil Court, for the same service dates.  The insurer moved to dismiss on the grounds of res judicata which was granted with a statement from the court that the plaintiff failed to file a timely note of issue in the first action and was forum shopping.

 

On appeal, the appellate court reversed on the ground that res judicata would not apply here since the first action was not dismissed on the merits and with prejudice.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]

Of Property

 

6/24/10                Green Harbour Homeowners’ Assoc. v Chicago Title Ins. Co.

Appellate Division, Third Department

Policy Exclusion Which Explicitly Excludes Claims Arising Out of a Disputed Deed Applied to Bar Coverage

Although there are many twists and turns in this case, the basic dispute boils down to the fact that a deed did not accurately reflect the agreement between the party conveying land and the party taking title.  The deed was dated October 4, 1994, and was entered with the County Clerk’s Office shortly thereafter. 

 

Fast forward nine years, when Green Harbour procures a title insurance policy with Chicago Title.  In the course of its underwriting process, Chicago Title recognized the discrepancy in the deed and brought it to the attention of Green Harbour.  However, Chicago Title agreed to the write the policy with the proviso that it include an exclusion for any claims arising out of the disputed deed and the 1994 land conveyance.

 

Notably, Green Harbour knew about the exclusion, and objected to its inclusion in the policy.  Notwithstanding their objections, however, Green Harbour accepted the policy as offered by Chicago Title.

 

Not surprisingly, Green Harbour eventually submitted a claim for coverage after becoming embroiled in litigation over the 1994 conveyance.  Chicago Title immediately invoked the language of the exclusion, and disclaimed any and all coverage obligations.  The Third Department affirmed by ruling that the exclusion, as drafted, unambiguously excluded the claim.  Moreover, even if the exclusion could be construed as ambiguous, extrinsic evidence clearly established the intent of the exclusion, and what purpose it was intended to serve.  Indeed, Green Harbour’s initial objection proves that they understood the meaning and applicability of the exclusion.

 

6/17/10                Green v. William Penn Life Company of NY

Appellate Division, First Department

After Three Years and Three Decisions, the First Department Continues Its Struggle with the Age Old Presumption Against Suicide

 

This one has had an extensive history already….back in 2007, our Editor, Dan Kohane, offered the following:

 

12/20/07        Green v. William Penn Life Insurance Company of New York

Appellate Division, First Department

In Life Insurance Case, Presumption Against Suicide Remain Intact and Insurer Required to Pay Benefits

In a 3-2 decision by a hotly divided court, the majority rules that the ancient presumption against suicide is still the law of the land.  Since there were other explanations that could explain the death of the decedent, other than a drug overdose (no autopsy performed), the court found that the presumption was not overcome and thus $500,000 (plus interest) payment under the policy was due.

Editor’s Note: This case is destined for Court of Appeals review, guaranteed by the 3-2 vote (unless the parties settle the matter beforehand)

Then, in our May 15, 2009 issue, yours truly penned the following thoughts:

5/05/09            Green v William Penn Life Ins. Co. of New York
Court of Appeals
The Issue of Suicide is Not an Issue of Law, but Usually an Issue of Fact that Must be Weighed against all of the Factors Presented at Trial

This matter involved a bench determination, after a non-jury trial, that the named insured under the life insurance policy issued by Penn Life had committed suicide.  On appeal, the First Department overturned the bench decision by holding that the evidence elicited at trial did not overcome the presumption against suicide. However, the Court of Appeals noted that in reaching its decision the First Department to employ the incorrect standard.

Relying upon the instructions found within the PJI, the Court of Appeals stated that a trier of fact “may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn.”  However, the Court warned that this instruction should not be interpreted to provide that “where more than one conclusion is reasonably possible, suicide is excluded as a matter of law.”  Rather, the Court found that the issue of whether the insured committed suicide is one, in most instances, of a question of fact that must be decided by the trier of fact. 

As there was evidence to support both theories of death in this case, the Court of Appeals remanded the matter back to the Appellate Division for a review of the Trial Court’s determination based on the facts of the case. 

Now, for the latest developments….

 

Upon remand, the First Department applied the “weight of the evidence” standard of review.  This means that the First Department provided itself with the power to “make new findings of fact” rather than simply reviewing the trial court’s earlier decision.  Applying the weight of the evidence standard, the First Department ruled that it concluded that the evidence deduced at the non-jury trial could have supported a determination of suicide. 

 

However, the Court noted that the evidence presented was not strong enough, standing alone, to overcome other evidence providing an alternative theory of death.  After a long discussion regarding the standard of review and the standard for proving the Affirmative Defense of suicide, the First Department instructs that the trier of fact must find against the determination of suicide unless “no conclusion other than suicide may reasonably be drawn or the evidence shows suicide to be highly probable.” 

 

At that point, the Court looked at expert testimony offered by the defendant at the time of trial.  In the Court’s review, the expert was not timely disclosed and therefore should have been precluded.  Allowing the expert to testify was reversible error on the part of the trial court.  Without the testimony, the court ruled that the carrier could not have met its burden. As such, the matter was remanded for a new trial to be handled in compliance with the evidentiary rulings offered in this decision.   We’ll await the inevitable appeal. 

 

And Potpourri

 

6/17/10                Carlson v Rockefeller Center North, Inc.

Appellate Division, First Department

Breach of an Oral Contract to Procure Insurance Is Actionable Against the Non-Procuring Party

The main party action commenced by Mr. Carlson arises from an incident that occurred when he fell from a scaffold while in the course of his employment with David Schuldiner, Inc.  (“Schuldiner”).  As a result of injuries sustained due to the fall, Mr. Carlson commenced a labor law claim against Rockefeller.  Rockefeller, in turn, commenced a third-party action seeking insurance from Schuldiner.  As set forth in the third-party complaint, Rockefeller alleges that Schuldiner had previously agreed to procure insurance coverage on behalf of Rockefeller, and that Schuldiner had previously provided a number of certificates of insurance which appeared to indicate said coverage had been procured.

 

We note that there appears to have been a long-standing relationship between Rockefeller and Schuldiner wherein Schuldiner performed maintenance work at the Rockefeller premises.  However, the contract between the entities had expired well before the incident giving rise to the current lawsuit.  As there was no written contract in effect at the time of the incident, accordingly, Rockefeller did not qualify as an additional insured under Schuldiner’s policy. 

 

Not to be defeated, Rockefeller argued that Schuldiner had breached an oral contract whereby Schuldiner agreed to procure coverage on behalf of Rockefeller.  The certificates of insurance were viewed by the First Department as evidence of the existence of the oral contract.  Further, the fact that Schuldiner provided copies of the requested certificates of insurance bolstered the claim that Schuldiner knew, and accepted, the terms of the oral contract.

 

6/15/10                Westchester Fire Ins. Co. v MCI Communications Corp.

Appellate Division, First Department

Endorsement Providing the Insured Shall Incur Its Own Defense Costs Means What It Says

Defendant’s policy with Westchester contained an Endorsement which unambiguously provided that MCI was liable for its own defense costs.  The First Department also noted that the Endorsement was a fundamental provision of the grant of coverage, and not an exclusion (therefore potentially subject to Insurance Law § 3420[d]) as argued by MCI.

 

6/11/10                Murad v. Russo

Appellate Division, Fourth Department

Injured Party and Claimant’s Request for a Declaration of Insurance Coverage, Pre-Judgment, is Deemed Premature

This matter stems from an incident involving Ms. Murad while acting in the course of her employment as a police officer for the City of Utica.  It appears that Ms. Murad was injured in a motor vehicle collision with defendant Russo, and that this action arises out of that event.  However, at some point, both the City of Utica and Ms. Murad sought declarations that Ms. Russo’s insurance policy would cover the alleged losses. 

 

In affirming the trial court’s decision, the Fourth Department noted that the matter was not ripe for resolution where it was unclear that the matter could even be resolved.  Accordingly, the court refused to grant, what it implied, would only be an advisory opinion as to coverage.

 

6/11/10                In re. Homan v Cattaraugus County Depart. of Social Services

Appellate Division, Fourth Department

County Maintained a Viable Lien for Paid Medical Services Which was Enforceable Against Plaintiff’s Uninsured Motorist Recovery

After being struck by an uninsured driver, plaintiff ultimately settled his uninsured motorist case for $25,000.  It appears that prior to that point, CCDSS asserted a medical lien against any recovery obtained by plaintiff.  Plaintiff has opposed the lien request by arguing that the settlement was not for medical expenses, but rather solely for pain and suffering.  In addition, plaintiff argues that no lien right existed for CCDSS.  Instead, plaintiff argues that CCDSS only possess a right of subrogation against the uninsured tortfeasor.

 

Not so fast sayeth the Fourth Department.  For starters, the Court ruled that CCDSS possesses a valid and enforceable medical lien against plaintiff’s recovery.  Moreover, the Court also ruled that plaintiff cannot shield his recovery by arguing that it was only to cover pain and suffering.  Accordingly, the Fourth Department ordered a hearing to determine the total value of plaintiff’s loss.  At that point, the Court directed that CCDSS was entitled to a proportionate share of the recovery previously obtained by plaintiff.

FIJAL’S FEDERAL FOCUS
Katherine A. Fijal
[email protected]

6/23/10           Insurance Company of North America v. Public Service Mutual Insurance Company

United States Court of Appeals for the Second Circuit

Did the District Court Abuse Its Discretion in Not Convening a New Arbitral Panel after an Arbitrator Resigns?

Public Mutual Insurance Company [“PSMIC”] commenced arbitration against Insurance Company of North America [“INA”] in April 2007 seeking reimbursement under reinsurance contracts for payments made to its insured for the settlement of certain pollution claims. The arbitration commenced before a three member panel consisting of Arbitrator Sullivan appointed by INA, an arbitrator appointed by PSMIC and an umpire.  On April 7, 2008, the panel granted PSMIC’s motion for summary judgment rejecting INA’s defenses.  All three members of the panel signed the order.

 

INA moved for reconsideration of the Order on April 18, 2008.  On May 2, 2008, while the motion for reconsideration was pending, Arbitrator Sullivan advised the parties and the other panel members that he had been diagnosed with cancer and would be resigning from the panel.  The parties accepted his resignation. 

 

On May 5, 2008, the remaining panel members ordered INA to appoint a replacement arbitrator.  INA responded that it believed that a new panel may have to be convened. Because the parties could not agree on how to proceed INA filed a petition in the Southern District of New York for a stay of arbitration and an order disqualifying the panel and compelling the arbitration to start over with a new panel. PSMIC filed a cross-petition to compel INA to proceed before the two remaining panel members with a substitute for Sullivan and to confirm the panels April 7, 2008 summary judgment order.

 

The district court consulted the “general rule” that absent “special circumstances”, “where one member of a three person arbitration panel dies before the rendering of an award and the arbitration agreement does not anticipate that circumstance, the arbitration must commence anew with a full panel.  Marine Products Export Corp. v. M.T. Globe Galaxy, 977 F.2d 66 (2nd Cir. 1992).  Based on the general rule, the district court granted INA’s petition for a new panel on December 10, 2008.  Although the court acknowledged the potential for abuse and manipulation intrinsic in permitting a losing party a “second bite at the apple” upon the resignation of its arbitrator, it was permitted in this case because there was no suggestion of misconduct and neither party disputed the severity of Sullivan’s health condition.

 

On January 19, 2009, shortly after filing its Notice of Appeals, PSMIC learned that Sullivan’s health had improved and he was again seeking work as an arbitrator.  PSMIC then filed a Rule 60(b) motion seeking relief from thee December 10, 2008 order on the basis of newly discovered evidence that Sullivan’s health had improved to the point that he had been actively seeking work by the time the district court rendered its original judgment. 

 

On July 29, 2009, the district court granted PSMIC’s motion.  The court found, among other things, that the fact that Sullivan had resigned, but was actively seeking appointment to other panels, qualified as a “special circumstance” that justified departing from the “general rule” requiring a new panel to be convened upon the death of an arbitrator, which the court observed was premises on permanent unavailability of the arbitral panelist.”

 

The court reappointed Sullivan and directed that if he was unwilling or unable to rejoin the panel, then INA would have to appoint a replacement.  Sullivan did not accept the appointment and INA appointed a replacement arbitrator.  INA then appealed. 

 

The standard of review applied by the Second Circuit was abuse of discretion.

 

The Second Circuit affirmed the district court holding that the district court did not abuse its discretion and that the general rule cited in Marine Products does not apply to vacancies resulting from resignations, because application of the rule in that context would create problems that do not arise in vacancies caused by an arbitrator’s death – principally the potential for manipulation by a party that, perceiving itself to be losing the arbitration, could disrupt the arbitration and obtain a new proceeding by pressuring its appointed arbitrator to resign.  Second, PSMIC was justifiably ignorant of Sullivan’s condition, because it was not required to monitor Sullivan’s progress in his battle against cancer, especially since INA initially insisted that PSMIC no longer contact him.

 

6/21/10                Eric S. Ringwald v. Prudential Insurance Company

United States Court of Appeals for the Eighth Circuit 

District Court Applies Improper Standard of Review

Reviewing Prudential’s decision for an abuse of discretion, the district court upheld Prudential’s denial of benefits.  Claimant Ringwald contends the district court should have reviewed Prudential’s decision to deny benefits under a de novo standard of review because the plan did not grant Prudential discretionary authority to determine eligibility of benefits.  The long term disability plan was governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§1001-1461. The Eight Circuit agreed with claimant.

 

Prudential was both the insurer who pays claims as well as the claims administrator who makes eligibility decisions. 

 

On April 8, 2004, Ringwald became unable to work as a game table dealer at Harrah’s Casino in the St. Louis area due to HIV, depression and fatigue.  His employment was terminated on April 16, 2004.  He later applied for and received short term disability benefits for a period of 24 months.  Ringwald also made a claim for long-term disability benefits under the plant.  Prudential denied the claim, relying on a mental illness exclusion in the plan which places a lifetime cap of 24 months on disability benefits due in whole or in part to mental illness.

 

Ringwald appealed the denial of long-term benefits through various administrative levels. The administrative appeal focused on whether Ringwald could be considered disabled based solely on his physical condition (HIV), rather than in part on his mental illness (depression).  Prudential determined Ringwald’s disability stemmed in part from mental illness and triggered the plan’s lifetime cap on such disabilities.  Prudential maintained its position and denied the claim.

 

Ringwald then brought an action in federal district court.  Prudential then filed a motion for summary judgment.  Prudential urged the district court to review its decision to deny benefits for an abuse of discretion because the Summary Plan Description (“SPD”) granted Prudential as the claims administrator the sole discretion to interpret the terms of the Group Contract, to make factual findings, and to determine eligibility for benefits.

 

The district court reviewed Prudential’s decision under an abuse of discretion standard, relying on Eighth Circuit precedent indicating “SPDs are considered part of the ERISA plan documents.  Under the abuse of discretion standard, the district court upheld Prudential’s decision to deny long-term disability benefits.

 

Ringwald timely appealed arguing, among other things, that the district court should have reviewed Prudential’s decision under a de novo standard of review rather than an abuse of discretion.

 

In reversing the district court’s decision the Eighth Circuit relied on Jobe v. Medical Life Ins. Co. which squarely addressed whether an SPD can grant the plan administrator discretion to determine eligibility for benefits when the plan itself does not.  The court noted that the Jobe decision was in line with other circuits which held that “a grant of discretion to the plan administrator, appearing only in a summary plan description, does not vest the administrator with discretion where the policy provides a mechanism for amendment and disclaims the power of the summary plan description to alter the plan.” A purported grant of discretion appearing only in the SPD could not be viewed as a procedurally proper amendment of the policy.

 

In the plan administered by Prudential there were no terms which would allow it to be amended by inserting into the SPD such critical provisions as the administrator’s discretionary authority to interpret the plan or to determine eligibility benefits.  The Court noted that in fact, the plan wholly failed to comply with §1102(b)(3)’s requirement to include a procedure governing amendment of the plan.  As a result there was no basis for concluding that the purported grant of discretion in the SPD is a procedurally proper amendment of the policy, and therefore “the policy’s failure to grant discretions results in the default de novo standard.”  Accordingly, the district court should not have reviewed the administrator’s decision for abuse of discretion but, rather, should have reviewed it de novo.

 

The district court’s failure to apply the correct standard of review made it necessary for the Eighth Circuit to remand the case because the district court was the proper forum to conduct the appropriate de novo standard of review.

JEN’S GEMS
Jennifer A. Ehman
[email protected]

6/11/10                Tower Ins. Co. of N.Y. v. NHT Owners LLC

Supreme Court, New York County

Court Holds that 28 Day Delay in Disclaiming Coverage for Late Notice Was Unreasonable as a Matter of Law

This action arises out of a fall from a ladder on defendants’ property.  Defendants admitted that they had knowledge of the accident on the date it occurred, August 30, 2004.  Thereafter, on October 18, 2004, they were served with a summons and complaint.  It was not until November 1, 2004 that defendants notified their agent of the complaint who in turn, on that day, notified the entity listed as the “Producer” on the Policy.  The Producer then notified plaintiff of the complaint on November 4, 2004.  The plaintiff disclaimed 28 days later based on late notice of occurrence. 

 

In this matter, plaintiff moved for summary judgment on the grounds that defendants’ notice was untimely.  Plaintiff also sought summary judgment dismissing defendants’ counterclaim for breach of the duty of good faith and fair dealing and the defendants then cross-moved.  In support of its motion, plaintiff alleged that although it received a copy of the summons and complaint on November 4, 2004, it did not know until November 8, 2004 that defendants knew of the accident on the date it occurred. 

 

The court held that defendants’ delay in not disclaiming coverage until December 2, 2004 was unreasonable.  The court reasoned that even assuming defendants needed the additional information provided, plaintiff failed to provide a sufficient explanation for its delay in disclaiming coverage.  In fact, it further held that plaintiff had made no showing in support of its assertion that it needed to conduct an investigation before determining whether to disclaim. 

 

6/10/10                Bandow Co. Inc. v. Burlington Ins. Co.

Supreme Court, New York County

No Reasonable Excuse for Plaintiff’s Delay in Notifying Insurer where Letter from Injured Party Requested Such Action

This action arises out of a December 18, 2007 trip and fall on a sidewalk where plaintiff was performing repairs.  By letter dated January 30, 2008, the injured party’s attorney notified plaintiff of a possible claim and asked that plaintiff forward a copy of the letter to its insurance carrier.  After receiving no response, the injured party’s attorney tried again by letter dated March 5, 2008.  Soon thereafter, plaintiff forwarded the second letter to his attorney and then, in reply, wrote a letter to the injured party’s attorney denying liability for the accident. 

 

On July 7, 2008, nearly seven months after the initial accident, the injured party commenced suit.  By facsimile transmission, dated August 14, 2008, plaintiff’s broker sent defendant a notice of claim.  Fifteen days later, defendant disclaimed coverage citing late notice. 

 

Plaintiff then brought this action and defendant moved for summary judgment.  In its motion, defendant pointed to discovery materials in which plaintiff admitted that the first notice it received of the accident was the March 5, 2008 letter.  Plaintiff also later conceded that it received the January letter too. 

 

In opposition to defendant’s motion for summary judgment, plaintiff argued that it was a resident of North Carolina.  Accordingly, North Carolina’s law, which has a prejudice requirement, governs.  It also asserted a good faith belief in nonliability. 

 

The court held that as plaintiff’s principal place of business was in New York, New York insurance law applies.  Additionally, the court held that neither party disputed that notice was untimely therefore it was only required to determine whether plaintiff’s excuse for delay was reasonable.  Thus, in light of the fact that the letter sent by the injured party advised plaintiff of the accident and asked it to notify its insurer, there was no reasonable excuse for plaintiff’s delay.

 

5/31/10                Farrell v. American Intl. Ins. Co.

Supreme Court, Nassau County

Court Finds a Question of Fact as to Whether Insured used “Reasonable Care” to Maintain Heat in the Cottage

Plaintiff James Farrell owned a property consisting of 8.9 acres of land, with a primary residence, a five-car garage, and a one-story guest cottage.  On February 12, 2007, plaintiff’s brother-in-law arrived at the cottage and observed water spraying out of a hot water pipe.  He also observed that the basement was flooded. 

 

Plaintiff’s Homeowner’s policy contained an exclusion for mold and the following condition of coverage, which stated:

 

G. Reasonable Care

 

You must use reasonable case to maintain heat in your residence or shut off and drain the water system or appliances if the home is vacant, unoccupied, or being constructed.  We do not cover any loss caused by water freezing in plumbing, heating, or air conditioning system or household appliance if reasonable care had not been exercised.

 

Upon an investigation by defendant, it was discovered that the cottage was very cold and in a state of disrepair.  The kitchen had no counter tops or appliances and the paint was peeling.  Thereafter, the defendant issued a reservation of rights letter and hired a mechanical engineer to provide an opinion concerning the cause of the water damage.  Defendant also obtained copies of plaintiff’s heating bills for the cottage. 

 

Thereafter, it appears that defendant disclaimed coverage, and plaintiff brought this action.  Defendant then moved for summary judgment dismissing the complaint.  After reviewing all the evidence, the court found a question of fact.  It reasoned that defendant presented a prima facie case that the cottage was vacant or unoccupied for many months prior to the incident, very little heat was used in the cottage in early 2007, and the temperatures were cold enough to cause freezing.  According to the court, the burden then shifted to the plaintiff to raise a triable issue of fact.  The court reasoned that such an issue was raised through evidence that, based on the utility bills, the heating system continued to function and produce a reasonable amount of heat prior to the leak.  Also, plaintiff’s brother-in-law testified that he never noticed a temperature drop or broken windows

 

Moreover, the court also found a question for the jury as to whether plaintiff breached the insurance contract by failing to mitigate the damages.  As support, the court pointed to evidence that plaintiff’s plumber shut off the water supply after the leak and plaintiff’s brother-in-law pumped water out of the basement. 

 

Lastly, the court found a question for the jury as to whether, and to what extent, mold was the “efficient proximate cause” of plaintiff’s loss.  

 

5/27/10                City of New York v. StarNet Ins. Co.

Supreme Court, New York County

Court Holds the Term “Document” in an Additional Insured Endorsement is Ambiguous

The City of New York entered into a contract with Aay-Zee Contracting Corp. for the reconstruction of a playground in the Bronx.  Thereafter, an employee of Aay-Zee was injured and commenced an action against the City.  The City tendered its defense to Aay-Zee’s insurer, StarNet Insurance Company, who disclaimed coverage stating that the City was not an additional insured under the Policy it issued.  In the denial letter, the insurer also informed the City that the Policy had been rescinded and voided ab initio in light of Aay-Zee’s material misrepresentations in procuring the Policy. 

 

The court held that the City was an additional insured under the StarNet Policy.  In support, the court pointed to an endorsement entitled “Additional Insured – Owners, Lessees or Contractors – Scheduled Persons or Organization.”  The endorsement provided that an additional insured was “any person or organization required to be named as an additional insured under a contract and evidenced by a certificate of insurance or document on file with the company.”  The court then pointed to a fax between an insurance broker and StarNet’s agent which stated “PLEASE BIND EFF 05/12/06 [line break] WHAT HAPPENS TO ADDITIONAL INSURED LIKE THE PARKS DEPARTMENT OF NY.”  The court held that the word “document” in the endorsement was ambiguous and, as no extrinsic evidence was submitted to resolve the ambiguity, it would be interpreted against the insurer.  Thus, the fax qualified as a “document” under the terms of the Policy.

 

The court also addressed the insurer’s rescission of the Policy ab initio.  The court held that the City was entitled to coverage separate from that provided to the named insured.   Accordingly, the named insured’s material misrepresentations did not impact the City’s entitlement to coverage. 

EARL’S PEARLS
Earl K. Cantwell
[email protected]

WATCH OUT FOR WHO DECIDES WHAT TO ARBITRATE

 

A recent case emphasized the importance of deciding early on in a case whether to oppose arbitration, and in what forum to raise such objections.  Bacon Construction Co., Inc. v. Department of Public Works, 294 Conn. 695 (Feb. 9, 2010).  In Bacon Construction, a public owner disagreed that a contractor’s claims were arbitrable, but waived and lost such objections and was hit with a $435,000 arbitration award. 

 

Bacon Construction did work for the Connecticut Department of Public Works on a correctional facility.  Typical delay and payment issues arose, and Bacon ultimately filed a demand for arbitration.  The Department of Public Works argued that the arbitrator lacked authority because Bacon had not filed a notice of claim or begun the arbitration within time limits set forth in state statutes.  In short, the State contended that the case was non-arbitrable.  However, the DPW then made the mistake of allowing the arbitrator to decide that threshold issue of arbitrability, which it lost. 

 

The arbitrator concluded that he had authority to arbitrate the claim since the state statute began the time clock upon execution of the contract or project commencement and stopped the clock within two years of work acceptance or contract termination, which ever was earlier.  Since the State had neither terminated Bacon nor issued a certificate of acceptance, even though the project performance had ended some ten years earlier, the arbitrator found the claim timely and awarded the contractor $435,000 in damages.  A trial court upheld that decision because the DPW had bound itself to the arbitrator’s decision on the threshold arbitrability issue when it empowered, or at least consented to, having the arbitrator decide that timeliness issue. 

 

On appeal, the decision was upheld based upon the argument that DPW waived its right to bring or renew the statutory issues in court when it submitted them to the arbitrator without objection.  The appellate court agreed, essentially finding that a party who voluntarily submits a dispute to arbitration without objecting to the arbitrability of the dispute waives judicial review of that issue.  A party may object to a dispute’s arbitrability before an arbitrator and still preserve its challenge to the matter for judicial review.  However, a party waives its right to judicial review by agreeing to vest the arbitrator with authority to decide that issue.  If the DPW had stopped at its initial step, raising its statutory and sovereign immunity defenses before the arbitrator, and done nothing further, it might have been entitled to a judicial review of the issue. 

 

The Bacon Construction case discusses the issues of what issues can the arbitrator decide, what issues do you want the arbitrator to decide, and not waiving objections to matters in arbitration.  Issues with respect to arbitrability, the scope of the arbitration, and any pre-conditions to arbitration should be raised early and separately. 

 

Essentially, disputes as to arbitrability may best be addressed in court since these frequently involve contractual, regulatory, or legal issues on which a proper legal ruling and possible appeal might need to be maintained.  Other issues having to do with pre-conditions to arbitration could be left to the arbitrator to decide, or they could also be raised in court, for example, by a motion to stay any arbitration proceeding as premature.  In the Bacon Construction case, any distinction between arbitrability and pre-conditions to arbitration overlapped and was lost.  The statutory limitations period for pursuing a claim was a partial waiver of sovereign immunity and a substantive legal arbitrability question.  Had DPW objected to the arbitration in court such as by filing a motion to stay arbitration or bringing an order to show cause, it might have been successful or at least obtained a judicial ruling on that precise threshold issue which then could be tested and subjected to further appeals. 

 

If there are barriers or grounds for objecting to arbitration, those should be raised early and in court, as opposed to submitting them to arbitration where there is little or no judicial review, and such threshold issues often get “lost in the shuffle” and become bound up in an overall arbitration ruling which is difficult to unravel.

ACROSS BORDERS
Courtesy of the FDCC Website
www.thefederation.org

6/22/10                Roehl Transport v. Liberty Mutual Ins. Co.

Wisconsin Supreme Court

An Insured with a Deductible for Its Liability Coverage Has a Bad Faith Claim When the Company Has Control Over the Settlement and Engages in Bad Faith Conduct Even though the Judgment Does Not Exceed Policy Limits

Roehl Transport had a policy with limits of two million dollars. This policy had a deductible of $500,000. A law suit was brought and resulted in a jury verdict of $830,000.00. Roehl sued Liberty Mutual for bad faith. The case was tried to verdict and the jury returned a verdict of $127,000.00. The Court reviewed in detail the Wisconsin law on bad faith and concluded that Roehl had a cognizable bad faith claim even though the verdict did not exceed policy limits, the evidence supported the jury's finding of bad faith, Roehl is entitled to attorney fees and the jury correctly decided that Roehl was not entitled to punitive damages.

Submitted by: Kay Gaffney Crowe, Barnes Alford

REPORTED DECISIONS

Barto v. NS Partners, LLC

 

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered September 3, 2009 in a personal injury action. The order, insofar as appealed from, denied in part the motion of defendant Ferguson Electric Construction Co., Inc. for summary judgment dismissing the complaint and cross claims against it.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ROBERT D. LEARY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LEWIS & LEWIS, P.C., BUFFALO (MARK CANTOR OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GOLDBERG SEGALLA LLP, BUFFALO (TROY FLASCHER OF COUNSEL), FOR DEFENDANT-RESPONDENT AND THIRD-PARTY DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint and cross claims against defendant Ferguson Electric Construction Co., Inc. are dismissed.

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he allegedly sustained when he grabbed a live wire while working on a hotel construction project. Defendant NS Partners, LLC (NS Partners), the hotel owner, hired third-party defendant, Walter S. Johnson Building Company, Inc. (Johnson), as the general contractor for the project. Johnson in turn hired defendant Ferguson Electric Construction Co., Inc. (Ferguson) to perform electrical work on the project, and plaintiff, an employee of Johnson, was installing acoustic ceiling tiles in the hotel's catering prep area at the time of the accident. Ferguson moved for summary judgment dismissing the complaint and cross claims against it, and Supreme Court denied the motion with the exception of "the claims asserted under Labor Law § 241 (6)[,] which were not opposed by the Plaintiff." We note at the outset that, although plaintiff did not assert a Labor Law § 200 cause of action or claim against Ferguson in the complaint, the bill of particulars includes such a claim. Thus, plaintiff has asserted a cause of action, as amplified by the bill of particulars, for common-law negligence and the violation of Labor Law § 200 (see generally Cantineri v Carrere, 60 AD3d 1331).

We agree with Ferguson that the court erred in denying that part of its motion with respect to the Labor Law § 200 and common-law negligence cause of action against it (see generally Bateman v Walbridge Aldinger Co., 299 AD2d 834, 836, lv denied 100 NY2d 502), inasmuch as Ferguson established its entitlement to judgment as a matter of law and plaintiff failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Ferguson, one of two electrical subcontractors working on the project, met its initial burden on the motion by demonstrating that it did not have "the authority to control the activity bringing about the injury" (Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1156), nor did it have the " right or authority to control the work site' " (Riordan v BOCES of Rochester, 4 AD3d 869, 870). Ferguson further established that it neither created nor had actual or constructive notice of the allegedly dangerous condition of the wire (see McNabb v Oot Bros., Inc., 64 AD3d 1237, 1240). Ferguson submitted evidence establishing, inter alia, that it had no employees working in the catering prep area where the accident occurred in the two weeks prior thereto and, indeed, it had refused to work in that area because of payment issues. Ferguson also submitted evidence demonstrating that Johnson's employees performed all of the relevant work in the catering prep area, including demolishing the old ceiling and using the existing lights as temporary lighting for the installation of the new ceiling.

In opposition to that part of the motion with respect to Labor Law § 200 and common-law negligence, plaintiff submitted no evidence with respect to Ferguson's alleged creation of the condition. With respect to actual notice, plaintiff offered only inadmissible hearsay statements and thus failed to raise a triable issue of fact (see Becovic v Poisson & Hackett, 49 AD3d 435; Robinson v Barone, 48 AD3d 1179, 1180; see also Capasso v Kleen All of Am., Inc., 43 AD3d 1346). Plaintiff likewise failed to raise a triable issue of fact with respect to constructive notice because he submitted no evidence that Ferguson's employees entered the catering prep area in the days leading up to the accident, and thus "constructive notice may not be imputed" to Ferguson (Applegate v Long Is. Power Auth., 53 AD3d 515, 516; see generally Boyd v Lepera & Ward, 275 AD2d 562, 564).

We further conclude that the court erred in denying that part of the motion of Ferguson seeking dismissal of all cross claims asserted against it. NS Partners asserted cross claims for contribution, common-law and contractual indemnification, breach of contract, and failure to procure insurance naming NS Partners as an additional insured on Ferguson's insurance policy, while Johnson asserted one cross claim against Ferguson for common-law "contribution and/or indemnification." Ferguson met its initial burden with respect to contribution, and in opposition NS Partners and Johnson were "required to show that [Ferguson] owed [them] a duty of reasonable care independent of its contractual obligations . . . or that a duty was owed plaintiff as an injured party and that a breach of this duty contributed to the alleged injuries" (Phillips v Young Men's Christian Assn., 215 AD2d 825, 827). NS Partners and Johnson "failed to assert an independent duty owed to [them]," i.e., independent of Ferguson's contractual obligations (id.). Further, as discussed above, Ferguson did not breach any duty owed to plaintiff in this case. Thus, the court should have dismissed the cross claims insofar as they seek contribution (see Zemotel v Jeld-Wen, Inc., 50 AD3d 1586, 1587). Because Ferguson did not direct or supervise the injury-producing work, the court also should have dismissed the cross claims insofar as they seek common-law indemnification (see Colyer v K Mart Corp., 273 AD2d 809, 810; see also Myers v T.C. Serv. of Spencerport, Inc., 16 AD3d 1105; Szafranski v Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113).

With respect to NS Partners' cross claim for contractual indemnification, the agreement between Johnson and Ferguson provided that Ferguson would indemnify the owner, NS Partners, "from any loss because of injury or damage to person or property arising or resulting from the performance of the work hereunder" (emphasis added). Inasmuch as Ferguson established that the accident did not arise or result from its work, NS Partners' contractual indemnification cross claim must also be dismissed (see Sorrento v Rice Barton Corp., 17 AD3d 1005, 1006).

Finally, with respect to Ferguson's alleged failure to procure insurance naming NS Partners as an additional insured, Ferguson met its initial burden by submitting a certificate of liability insurance naming Johnson and Namwest, the parent company of NS Partners, as additional insureds on a primary basis. In opposition to the motion, NS Partners failed to submit any evidence that Ferguson failed to procure the required insurance or obtained inadequate insurance coverage. Thus, that cross claim also should have been dismissed.

Doherty v. Merchants Mutual Insurance Company

 

Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered October 2, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

LAW OFFICE OF DEAN P. SMITH, ORCHARD PARK (DEAN P. SMITH OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PHILADELPHIA, PENNSYLVANIA (ERIC A. FITZGERALD OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: Plaintiffs, as assignees of Thomas S. Fitzpatrick, the defendant in the underlying personal injury action, commenced this action alleging that defendant acted in bad faith by failing to settle the underlying action and thereby exposing Fitzpatrick to personal liability. Plaintiffs commenced the underlying action seeking damages for injuries sustained by Jennifer M. Doherty (plaintiff) when the vehicle she was operating was rear-ended by a vehicle operated by Fitzpatrick. The jury awarded plaintiffs damages in excess of the coverage that Fitzpatrick had pursuant to his insurance policy with defendant and, in this action, plaintiffs seek damages in the amount of the difference between the verdict and the policy limit. Supreme Court (Wolfgang, J.) granted defendant's motion seeking summary judgment dismissing the complaint. We affirm.

"To prevail in . . . an action [seeking damages for an insurer's bad faith refusal to settle an underlying action], a plaintiff must establish that the insured lost an actual opportunity to settle the . . . [action] . . . at a time when all serious doubts about [his or her] liability were removed . . ., and that defendant insurer [acted with gross disregard for the insured's interests, i.e., it] engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that [the] insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted" (Kumar v American Tr. Ins. Co., 57 AD3d 1449, 1450 [internal quotation marks omitted]; see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453-454, rearg denied 83 NY2d 779). In the underlying action, Supreme Court (Curran, J.) denied Fitzpatrick's motion seeking summary judgment dismissing the complaint based in part on its determination that plaintiffs raised a triable issue of fact whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d), and the court granted plaintiffs' cross motion seeking partial summary judgment on the issue of Fitzpatrick's negligence.

It is undisputed that, prior to the trial of the underlying action, the attorneys for plaintiffs and Fitzpatrick requested that defendant settle the underlying action for the policy limit of $300,000. Nevertheless, "[i]t is settled that an insurer cannot be compelled to concede liability and settle a questionable claim' . . . simply because an opportunity to do so is presented' " (Pavia, 82 NY2d at 454). In support of its instant motion, defendant established that it investigated the claim in the underlying action and arranged for a physical examination of plaintiff to determine the extent of her alleged injuries and whether they constituted a serious injury. Although the expert retained by defendant and plaintiff's treating physician had differing views with respect to the extent of plaintiff's injuries, the expert determined that plaintiff sustained cervical, thoracic and lumbar strains that resulted in a "moderate, partial, temporary disability for recreational activities and activities of daily living in the home." Defendant's investigation included a videotape of plaintiff engaged in activities without apparent difficulty, despite her alleged injuries. Defendant further established that it participated in settlement negotiations prior to and during the trial and that Supreme Court (Curran, J.) was actively engaged in the settlement negotiation process. Prior to trial, plaintiffs reduced their demand to $250,000 and, during the trial, they further reduced their demand to $240,000. Defendant thereafter increased its settlement offer from $25,000 to $55,000. Furthermore, the internal records of defendant submitted in support of the instant motion establish that the "high-low" offer that it made after the trial commenced was "not well received," and plaintiffs' attorney testified at his deposition that the "high-low" offer was rejected.

We conclude that defendant established that Fitzpatrick did not lose an actual opportunity to settle the claim at a time when all serious doubts about his liability were removed and it was clear that the potential recovery far exceeded the insurance coverage (see id.), and thus that it did not act with gross disregard for Fitzpatrick's interests (see id. at 453). We therefore conclude that defendant established its entitlement to summary judgment dismissing the complaint, and that plaintiffs failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

All concur except Centra and Carni, JJ., who dissent and vote to reverse in accordance with the following Memorandum: We respectfully dissent and begin our analysis with the well-settled proposition that a jury question exists in most cases where the issue is whether an insurer's good faith obligation has been met (see 2 NY PJI2d 4:67, at 1016). Bad faith is generally proven by evidence largely circumstantial in nature (see Cappano v Phoenix Assur. Co. of N.Y., 28 AD2d 639). Like many other actions involving bad faith, it is a rare occasion to uncover a "smoking gun" and instead the proof of these cases requires the careful and collective evaluation of a confluence of factors and inferences uniquely within the province of a jury. The determination of whether an insurer acted in bad faith involves a review of the evolving body of information that is developed over the course of the management of the claim and the settlement posture of the parties as the litigation progresses.

Although the plaintiff's burden of proof in a bad faith action is correctly stated by the majority, in our view the majority fails to provide appropriate scrutiny to the

the   legion of factors the Court of Appeals has identified as necessary in reaching the conclusion that there was no bad faith as a matter of law (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 454-455, rearg denied 83 NY2d 779). Although not mentioned by the majority, we also note at the outset that the jury verdict against Thomas S. Fitzpatrick in the underlying personal injury action was $740,000 and defendant's highest settlement offer was $55,000. The limit of Fitzpatrick's insurance policy with defendant was $300,000, and the sum of $289,489 was available after payment of other claims.

One of the important factors to be considered in evaluating the merits of a bad faith claim is the likelihood that a verdict in favor of the injured claimant, in this case Jennifer M. Doherty (Doherty), would exceed the policy limit (see PJI 4:67). Here, the record establishes that, on May 9, 2003, defendant concluded, with respect to the issue of negligence, that it had "no legal defenses" and, on January 9, 2003, defendant determined that its proportionate share of fault for liability in this rear-end accident was "100%." On December 11, 2003, defendant's claim representative advised defendant's counsel that a motion for summary judgment on the serious injury threshold was not authorized because defendant's own "IME indicate[d] [Doherty] is disabled" and that such a motion would not be granted since defendant's "IME was completed on 11/4/03 (1 year and 2 mos after the [date of loss]) indicating [Doherty] is still disabled." Thus, defendant had already determined that its insured was 100% responsible for the accident and that Doherty was still disabled more than one year after the accident. All serious doubts about culpability for the accident were resolved in Doherty's favor very early on in the process. The only issues to be resolved were whether Doherty sustained a threshold serious injury and, if so, the damages to be awarded.

On August 13, 2004, notwithstanding defendant's prior determination that Doherty was still disabled more than a year after the accident, Supreme Court denied a motion for summary judgment by Fitzpatrick on the issue of the serious injury threshold. In making this determination, the court stated that Doherty and her husband presented "objective evidence" of a serious injury which was supported by the "qualitative assessment" of Doherty's orthopedic surgeon.

Doherty was 27 years old in December 2003 and had a life expectancy of 54.4 years (see 1B NY PJI3d, Appendix A, at 1729). Thus, defendant's potential exposure included 54.4 years of future pain and suffering and disability. The jury awarded $500,000 for future pain and suffering. There is no indication in defendant's file that it calculated Doherty's life expectancy at any time.

Necessarily inherent in an insurer's duty to its insured is a well-reasoned and thorough analysis leading to the establishment of a predicted jury verdict value in the event of a verdict in favor of the injured claimant (see PJI 4:67). The record is devoid of any assertion by defendant that it had evaluated and actually assigned a potential jury verdict value, as compared to a settlement value, to Doherty's personal injury claim. Indeed, defendant's claim representative admitted that she never assigned a value or even a value range to the claim and could not recall how she arrived at the $10,000 settlement offer that remained in place until the first day of trial, when it was increased to $25,000. The record does not contain evidence of any analysis by defendant of the potential for high-end jury verdicts in the trial venue or any examination of jury verdict reports in cases with similar injuries in similar venues. Thus, in our view, on this record, defendant utterly failed to satisfy one of the most fundamental factors essential to a finding of good faith.

Although the majority concludes that defendant "investigated the claim in the underlying action," we submit that the quality and thoroughness of that investigation should be the subject of careful review. It is for the jury to decide if "[a] reasonable investigation of the facts . . . would indicate that the chances of successfully defending the [underlying] action were very remote" (State of New York v Merchant's Ins. Co. of N.H., 109 AD2d 935, 936). Here, it is undisputed that Doherty and her husband presented defendant with qualified and well-respected medical testimony and opinion that she had sustained a significant shoulder injury in addition to permanent injuries at multiple levels of her cervical spine and a disc injury in her lumbar spine at the L5-S1 level. Yet, the record is equally clear that defendant did not attempt to obtain an independent medical examination related to Doherty's shoulder and, in fact, relied upon the limited examination of a neurologist who admitted that she was not qualified to offer an opinion regarding Doherty's shoulder and that accident biomechanics was "a weak point in her expertise." Defendant's examining physician provided this videotaped testimony on August 31, 2004. The trial commenced on September 9, 2004. Thus, we conclude that, when the trial began, defendant knew that it had no competent evidence to rebut the evidence of Doherty and her husband with respect to Doherty's injured shoulder and the need for surgical repair.

While the majority notes that defendant had obtained videotape surveillance of Doherty—a stay-at-home mother of two children ages 5 and 7—engaging in "activities without apparent difficulty," including carrying her children, the record establishes that, once the trial began, defendant made no evaluation of the jury composition, which included four women who might understand and sympathize with Doherty's lack of choice in engaging in those activities while Doherty's husband worked at two jobs. In our view, a defendant does not establish good faith by using tunnel vision to evaluate the claim and the evolving nature of the process.

The record also establishes that defendant was never prepared to offer the policy limits in that the claim manager's settlement authority was limited to $150,000, and the claim manager testified that he never spoke with his supervisor concerning authorization to offer a greater amount.

We disagree with the majority's conclusion that defendant's participation in settlement negotiations is indicative of its good faith. Even the ultimate tender of full policy limits on the eve of trial cannot insulate an insurer from liability for bad faith failure to settle within policy limits (see Knobloch v Royal Globe Ins. Co., 38 NY2d 471, 478). Here, on the first day of trial, defendant's counsel advised that he needed to revise his exposure opinion and that, if the jury believed that Doherty needed surgery, the potential exposure was above $250,000. Although defendant had no expert to rebut Doherty's need for shoulder surgery, its settlement offer remained at $25,000. Four days into trial, defendant's settlement offer was increased to $55,000. The settlement demand of Doherty and her husband was $240,000—well within the policy limits and below the potential exposure indicated by defendant's counsel. Their counsel thereafter declined to continue negotiations and an opportunity to settle within the policy limits had been lost. To the extent that defendant contends that Doherty and her husband cut off settlement discussion or denied defendant an opportunity to settle, the jury could reasonably conclude that their decision to do so "was the direct result of defendant's own conduct" because "[d]efendant never indicated that it would make a fair and reasonable offer and, by failing to do so, defendant suppressed negotiations" (State of New York v Merchants Ins. Co. of N.H., 109 AD2d 935, 937).

We also recognize that opportunities to settle the claim within the policy limits can be lost at various points in the evolving continuum of the litigation and claim management process. In our view, an opportunity to settle the claim may be lost early in the process and may not be recovered or the bad faith cured by subsequent conduct. In other words, we do not believe that an insurer's bad faith is measured at the moment before the jury returns a verdict. Instead, conduct by the insurer weeks or months before the jury verdict may have entrenched the parties or foreclosed the opportunity for settlement long before a jury is empaneled. Thus, in our view, the fact that defendant made a "high-low" offer four days after the trial commenced is not dispositive. Even assuming, arguendo, that the "high-low" offer was meaningful, which, in our view, it was not, such "a belated tender [does not] operate without more to exonerate a carrier from a pre-existing liability for bad-faith failure to settle within policy limits" (Knobloch, 38 NY2d at 478 [emphasis added]). Our own precedent establishes that the delayed unconditional making of a settlement offer of the full policy limits does not automatically relieve the carrier of liability (see Reifenstein v Allstate Ins. Co., 92 AD2d 715, 716). It is not the mere fact that a "high-low" offer was made, but also the timing of that offer that must be evaluated in light of all the circumstances. Therefore, we cannot agree with the majority that defendant's "high-low" offer conclusively demonstrates that defendant met its good faith obligation. Instead, it is "but a factor for the jury to consider on the question of bad faith" (id. at 716).

Lastly, in our view, the contention of defendant that its reliance upon the trial court's discussions during settlement conferences provides some form of absolution from a bad faith claim is misplaced. We conclude that, had the trial court recommended a settlement figure more favorable to Doherty, such as $700,000, defendant would have summarily rejected the trial court's view. In any event, we are well aware that, during settlement conferences, a trial court is not provided full access to the files and investigative materials of the parties. In our view, defendant's good faith is measured by what it knew and had in its files—not by a trial court's view of the case based upon limited information provided during a settlement conference.

Therefore, we conclude that there are issues of fact whether defendant "engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that [its] insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted" (Pavia, 82 NY2d at 453-454; see Kumar v American Tr. Ins. Co., 57 AD3d 1449).

Thus, we would reverse the order, deny defendant's motion for summary judgment and reinstate the complaint.

Gruninger v. Nationwide Mutual Insurance Company

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered March 30, 2009. The order, among other things, granted the motion of defendants Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company for summary judgment.

MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
LAW OFFICE OF EPSTEIN & HARTFORD, WILLIAMSVILLE (JENNIFER V. SCHIFFMACHER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action pursuant to Insurance Law § 3420 (a) (2), alleging that defendants Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company (collectively, Nationwide defendants) are obligated to satisfy the judgment that plaintiffs obtained against defendant Jeffrey Harmer in the underlying personal injury action (see Insurance Law § 3420 [a] [2]). Harmer was insured under a homeowners' policy issued by the Nationwide defendants. In the underlying action, plaintiffs sought damages for injuries sustained by Michael Gruninger (plaintiff) when he was shot by Harmer while they were deer hunting. As a result of that incident, Harmer pleaded guilty to assault in the third degree (Penal Law § 120.00 [3]). After they were notified of the underlying incident, the Nationwide defendants issued a letter in which they disclaimed coverage based on, inter alia, a provision in the homeowners' policy that excluded coverage for bodily injury "caused by or resulting from an act or omission [that] is criminal in nature and committed by an insured." Plaintiffs appeal from an order that, inter alia, granted the Nationwide defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment on the complaint. We affirm.

In Slayko v Security Mut. Ins. Co. (98 NY2d 289, 292), the defendant's insured had pleaded guilty to assault in the second degree (Penal Law § 120.05 [4]), arising from an incident in which he pointed a shotgun at the plaintiff and pulled the trigger, incorrectly believing that the gun was unloaded. The Court of Appeals concluded that a provision in the insurance policy issued by the defendant excluding coverage for liability “arising directly or indirectly out of instances, occurrences or allegations of criminal activity by the insured' ” did not violate public policy and that it properly excluded coverage for the plaintiff's injuries (Slayko, 98 NY2d at 294-296).

Here, plaintiffs correctly concede that the shooting incident falls within the criminal act exclusion in the homeowners' policy and, based on the Court's decision in Slayko, such an exclusion is not barred by public policy. Plaintiffs contend, however, that this case is of the sort anticipated by the Court when it acknowledged in Slayko that "[a] case may arise in which a broad criminal activity exclusion . . . facially applies, yet works an injustice because the prohibited act involves little culpability or seems minor relative to the consequent forfeiture of coverage" (id. at 294). We reject that contention. Pursuant to Penal Law § 120.00 (3), "[a] person is guilty of assault in the third degree when . . . [w]ith criminal negligence, he [or she] causes physical injury to another person by means of a deadly weapon or a dangerous instrument." Contrary to plaintiffs' contention, criminal negligence as defined in Penal Law § 15.05 (4) is not synonymous with the common-law negligence standard applied in civil cases (see PJI 2:10), and not every hunting accident would be excluded under the criminal activity exclusion inasmuch as such accidents do not necessarily involve criminal negligence.

Henner v. Everdry Marketing and Gemini Insurance

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered December 29, 2008. The order granted the motion of defendant Gemini Insurance Company to dismiss the complaint against it.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
WHITE, FLEISCHNER & FINO, LLP, NEW YORK CITY (JANET FORD OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following Memorandum: Plaintiffs commenced this action alleging, inter alia, that defendant Everdry Marketing and Management, Inc. (EMM) and its affiliates, including Everdry Management Services, Inc. (EMS), violated Navigation Law § 181 (5) by discharging petroleum on their property. In appeal No. 1, plaintiffs appeal from an order granting the motion of defendant Gemini Insurance Company (Gemini), which issued an insurance policy to EMS, seeking to dismiss the complaint against it on the ground that plaintiffs have "no viable cause of action against it." In appeal No. 2, plaintiffs appeal and defendants-respondents-appellants (collectively, CNA defendants), the insurers of "EMM and/or EMS" according to plaintiffs, cross-appeal from an order granting that part of the motion of the CNA defendants, treated as one for summary judgment by Supreme Court pursuant to CPLR 3211 (c), seeking to dismiss the complaint against them as the insurers of EMS. The court denied that part of the motion insofar as the CNA defendants alleged that plaintiffs failed to provide timely notice of the accident to them, as the insurers of EMM, of the claims under the Navigation Law.

With respect to appeal No. 1, we agree with plaintiffs that the court erred in granting the motion of Gemini to dismiss the complaint against it on the ground that plaintiffs have "no viable cause of action against it." Pursuant to Navigation Law article 12, a party injured by the discharge of petroleum may maintain an action directly against the insurer of the discharger (see § 190), "despite the failure of the insured to provide timely notice of the accident" (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 863-864; see Vacca v State Farm Ins. Co., 15 AD3d 473, 474-475; Utica Mut. Ins. Co. v Gath, 265 AD2d 805). "Moreover, the insurer will be estopped from later raising a defense that it did not mention in the notice of disclaimer" (Mount Vernon Fire Ins. Co. v Harris, 193 F Supp 2d 674, 679 [ED NY]; see General Acc. Ins. Group, 46 NY2d at 864).

Here, it is undisputed that Gemini disclaimed coverage on the ground that its insured did not provide timely notice of the accident, and it also attempted to raise certain policy exclusions. Gemini did not, however, disclaim coverage on the ground relied upon in its motion and on appeal, i.e., that plaintiffs failed to provide it with timely notice of the accident. Consequently, Gemini is precluded from relying upon that defense (see Government Empls. Ins. Co. v Jones, 6 AD3d 534, 535; Hazen v Otsego Mut. Fire Ins. Co., 286 AD2d 708;Utica Mut. Ins. Co., 265 AD2d 805), and the court erred in granting Gemini's motion based on that defense.

Although plaintiffs further contend on appeal that the court erred in its determination with respect to the issue of the applicability of the exclusions in the Gemini policy, we note that the court in fact expressly stated that it had not "fully" analyzed that issue, although there may be "viable arguments" with respect to it. In view of our determination that the court erred in granting the motion of Gemini based on plaintiffs' failure to provide it with timely notice of the accident, however, the issue concerning the applicability of the policy exclusions is no longer moot. We therefore reverse the order in appeal No. 1 and remit the matter to Supreme Court to determine that issue and thus to decide the motion of Gemini for summary judgment dismissing the complaint against it based on the policy exclusions (see Murray v Lancaster Motorsports, Inc., 27 AD3d 1193, 1196).

With respect to appeal No. 2, plaintiffs contend on their appeal that the court erred in granting that part of the motion of the CNA defendants as the insurers of EMS because, like Gemini, they did not disclaim coverage based on plaintiffs' allegedly untimely notice of the accident, while the CNA defendants contend on their cross appeal that the court erred in denying that part of their motion as the insurers of EMM. We agree with the CNA defendants that plaintiffs failed to preserve for our review their contention with respect to EMS by failing to raise it in opposition to the motion (see Matter of Prudential Prop. & Cas. Ins. Co. v Ambeau, 19 AD3d 999; see also Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448, lv denied 78 NY2d 851). In opposing the motion of the CNA defendants, plaintiffs attached a copy of the attorney's affirmation that they submitted in opposition to the motion of Gemini at issue in appeal No. 1. In doing so, however, they specified the contentions in the affirmation that they were incorporating in opposition to the motion of the CNA defendants, and the contention in question was not mentioned by plaintiffs. Nevertheless, we conclude that " the issue . . . is one of law appearing on the face of the record that [the CNA defendants] could not have countered had it been raised in the court of first instance,' " and thus the issue may be raised for the first time on appeal (Hoke v Hoke, 27 AD3d 1055, 1055; see Paul v Cooper, 45 AD3d 1485, 1486; Oram v Capone, 206 AD2d 839).

For the reasons stated with respect to appeal No. 1, we conclude that the court properly denied that part of the motion seeking summary judgment dismissing the complaint against the CNA defendants as the insurers of EMM but erred in granting that part of the motion with respect to EMS, and we therefore modify the order in appeal No. 2 accordingly. Although the CNA defendants sent letters purporting to reserve their rights to disclaim coverage, a reservation of rights does not qualify as a timely disclaimer (see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029, rearg denied 47 NY2d 951; NYAT Operating Corp. v GAN Natl. Ins. Co., 46 AD3d 287, lv denied 10 NY3d 715). Indeed, the CNA defendants did not meet their initial burden with respect to that part of their motion, inasmuch as the evidence submitted by them in support of their motion in fact established that they did not disclaim coverage based on plaintiffs' alleged untimely notice of the accident, and thus they waived that defense.

In view of our determination, we need not address plaintiffs' remaining contentions with respect to appeal No. 2.

Konstantinou v. Phoenix Insurance Company

Appeal from an order of the Supreme Court, Wayne County (Dennis M. Kehoe, A.J.), entered June 2, 2009. The order denied the motion of plaintiff for summary judgment and granted the motion of defendant for summary judgment dismissing the complaint.

ANTHONY J. VILLANI, P.C., LYONS (ANTHONY J. VILLANI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HISCOCK & BARCLAY, LLP, ROCHESTER (ANTHONY J. PIAZZA OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: This action arises from a motor vehicle accident that occurred when David Thurston, who was operating a Chevrolet Celebrity (Celebrity) owned and insured by his sister, Tynette Thurston, crashed into a vehicle driven by decedent Stavros Konstantinou and in which decedent Lorin Konstantinou was a passenger. Lorin Konstantinou sustained serious injuries that resulted in death, and Stavros Konstantinou sustained serious injuries but later died of unrelated causes. Stavros Konstantinou, individually and as administrator of Lorin Konstantinou's estate, commenced an action against, inter alia, the Thurston siblings and their mother, Brenda L. Henderson. After obtaining partial satisfaction of a judgment in favor of Stavros Konstantinou, as administrator of Lorin Konstantinou's estate, against the Thurston siblings and a judgment in favor of Stavros Konstantinou, individually, against the Thurston siblings, plaintiff commenced this action pursuant to Insurance Law § 3420 seeking to recover the unpaid balance of the judgments under an automobile insurance policy issued by defendant to Henderson. Supreme Court, inter alia, granted defendant's motion for summary judgment dismissing the complaint. We affirm.

The general coverage provision in Henderson's insurance policy provided: "We will pay damages for which the insured becomes legally responsible because of bodily injury or property damage caused by accident and arising out of the ownership, maintenance or use of your car or any non-owned car." The policy listed Henderson as the only named insured and a Chevrolet Lumina as the only covered vehicle. The policy defined "your car" as, inter alia, "any vehicle described on the declarations page of [the] policy." Thus, the Celebrity was not covered under the category "your car."

The policy also defined a "non-owned car" as "a land motor vehicle with at least four wheels designed to be used mainly on public roads, or a trailer. However, it must not be owned by or furnished or available for the regular use of you or a relative." The policy further explained that "You and your mean the person [listed as the named insured on the declarations page, i.e., Henderson, and that] . . . Relative means your relative, residing in your household."

Contrary to plaintiff's contention, the court properly determined that the Thurston siblings were relatives of Henderson who resided in her household and that the Celebrity therefore was not a "non-owned car" for which defendant would be required to provide coverage with respect to the accident in question. A person is a resident of a household for insurance purposes if he or she " lives in the household with a certain degree of permanency and intention to
remain' " (Matter of State Farm Mut. Auto. Ins. Cos. v Jackson, 31 AD3d 1171, 1171). Although Tynette Thurston lived at college at the time of the accident, defendant submitted evidence in support of the motion establishing that she was a resident of the household inasmuch as she lived with Henderson during the summers, received mail at Henderson's house, stayed there every other weekend, and listed that address on the Celebrity's title and insurance (see Dutkanych v United States Fid. & Guar. Co., 252 AD2d 537, 538; see also Matter of Prudential Prop. & Cas. Ins. Co. [Galioto], 266 AD2d 926). Thus, because the Celebrity was owned by a relative of Henderson who was a resident of her household, it was not a "non-owned car" under the terms of the policy entitled to coverage by defendant.

Moreover, it was undisputed that David Thurston was a relative of Henderson who was a resident of her household, and defendant submitted evidence in support of the motion establishing that the Celebrity was available for his regular use inasmuch as he had unrestricted access to the Celebrity while Tynette Thurston was at college and had used it several times prior to the accident (see generally Newman v New York Cent. Mut. Fire Ins. Co., 8 AD3d 1059, 1060). Thus, the Celebrity also was not a "non-owned car" within the meaning of the policy because it was available for the regular use of a relative of Henderson who was a resident of her household.

Contrary to plaintiff's further contention, the Celebrity is not entitled to coverage under Henderson's policy with defendant on the ground that defendant failed to disclaim coverage in a timely manner. It is well established that "[d]isclaimer pursuant to [Insurance Law § ] 3420 (d) is unnecessary when a claim falls outside the scope of the policy's coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed" (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188; see State Farm Fire & Cas. Co. v Whiting, 53 AD3d 1033, 1035; see generally Zappone v Home Ins. Co., 55 NY2d 131, 137-139).

Sevenson Environmental Services v. Sirius America Insurance Company

Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered May 20, 2009 in a declaratory judgment action. The judgment granted those parts of the cross motions of plaintiffs and defendant Thomas Johnson, Inc. seeking a declaration that defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is obligated to defend and indemnify plaintiffs in the underlying action.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (TIMOTHY E. DELAHUNT OF COUNSEL), FOR DEFENDANT-APPELLANT.
PHILLIPS LYTLE LLP, BUFFALO (WILLIAM D. CHRIST OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
SLIWA & LANE, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and those parts of the cross motions seeking summary judgment declaring that defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is obligated to defend and indemnify plaintiffs in the underlying action are denied.

Memorandum: Plaintiffs, Sevenson Environmental Services, Inc. (Sevenson) and The Goodyear Tire and Rubber Company (Goodyear), commenced this action seeking, inter alia, a declaration that defendant Sirius America Insurance Company, also known as Sirius Insurance Company (Sirius), is obligated to defend and indemnify them in an underlying personal injury action. We note at the outset that we determined on a prior appeal that, inter alia, Sirius validly disclaimed coverage for defendant Thomas Johnson, Inc. (TJI) in the underlying action based on TJI's late notice of the construction accident from which the underlying action arose (Sevenson Envtl. Servs., Inc. v Sirius Am. Ins. Co., 64 AD3d 1234, lv dismissed 13 NY3d 893). We now agree with Sirius on this appeal that Supreme Court erred in agreeing with plaintiffs that Sirius is estopped from denying coverage to plaintiffs as additional insureds under the policy issued to TJI and thus in granting those parts of the cross motions of plaintiffs and TJI seeking a declaration that Sirius is obligated to defend and indemnify plaintiffs in the underlying action.

The first issue before us is whether plaintiffs are in fact named additional insureds. In support of their cross motion, plaintiffs submitted a certificate of insurance providing that "Sevenson . . ., the Project's Owner and Engineer, and their respective officers, employees and agents are named as additional insureds on a direct, primary and non-contributory basis." They also submitted an additional insured endorsement naming persons or organizations "as on file with company." In opposition to the motion, Sirius raised an issue of fact by submitting an affidavit from an employee of its third-party claims administrator, UTC Risk Management Services, Inc. (UTC), who averred that TJI's underwriting file did not contain any request or notice to name plaintiffs as additional insureds on the policy. Although Sirius contends on appeal that it is entitled to summary judgment declaring that it is not obligated to defend or indemnify plaintiffs in the underlying action (see CPLR 3212 [b]), we conclude that the fact that UTC did not locate any documentation in TJI's underwriting file is, by itself, insufficient to establish as a matter of law that neither Sirius nor one of its agents possesses documentation naming plaintiffs as additional insureds (cf. Tribeca Broadway Assoc., LLC v Mount Vernon Fire Ins. Co., 5 AD3d 198; ADF Constr. Corp. v Home Insulation & Supply, 237 AD2d 915, 916).

Contrary to the court's determination in granting judgment in favor of plaintiffs, we conclude that there is an issue of fact whether Sirius is estopped from denying additional insured coverage to plaintiffs. It is well established that a certificate of insurance, by itself, does not confer insurance coverage, particularly under the circumstances of this case, in which the certificate expressly provides that it "is issued as a matter of information only and confers no rights upon the certificate holder [and] does not amend, extend or alter the coverage afforded by the policies listed below," e.g., the general liability policy. "A certificate of insurance is only evidence of a carrier's intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists" (Tribeca Broadway Assoc., LLC, 5 AD3d at 200; see School Constr. Consultants, Inc. v ARA Plumbing & Heating Corp., 63 AD3d 1029, 1030-1031; Home Depot U.S.A., Inc. v National Fire & Mar. Ins. Co., 55 AD3d 671, 673).

Nevertheless, an insurance company that issues a certificate of insurance naming a particular party as an additional insured may be estopped from denying coverage to that party where the party reasonably relies on the certificate of insurance to its detriment (see Lenox Realty v Excelsior Ins. Co., 255 AD2d 644, 645-646, lv denied 93 NY2d 807; Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co., 151 AD2d 207, 210-211). For estoppel based upon the issuance of a certificate of insurance to apply, however, the certificate must have been issued by the insurer itself or by an agent of the insurer (see Tribeca Broadway Assoc., LLC, 5 AD3d at 200; Niagara Mohawk Power Corp. v Skibeck Pipeline Co., 270 AD2d 867, 869; Lenox Realty, 255 AD2d at 646; see also American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 423-424).

We conclude that plaintiffs did not meet their initial burden on the cross motion with respect to estoppel of establishing that the certificate of insurance was issued by Sirius or an authorized agent of Sirius. Plaintiffs submitted evidence that Overdorf Associates Agency, Inc. (Overdorf), TJI's insurance broker, issued the certificate of insurance naming them as additional insureds on the TJI policy. An employee of Overdorf testified at his deposition that North Island Facilities, Ltd. (NIF) authorized him to issue the certificate of insurance, and that NIF is an agent of record for Sirius. It is undisputed, however, that Overdorf is not an authorized agent of Sirius, and we conclude that the deposition testimony of Overdorf's employee, by itself, is insufficient to establish an agency relationship between Sirius and NIF.

Finally, we reject the further contention of Sirius that it is entitled to summary judgment on the issue of estoppel pursuant to CPLR 3212 (b). In opposition to plaintiffs' cross motion on the issue of estoppel, Sirius submitted an affidavit from an employee of UTC stating that neither NIF nor Overdorf is an agent of Sirius. Sirius, however, failed to present evidence or deposition testimony from any person from its own company or from NIF addressing the precise nature of the relationship between the two companies.

In light of our determination that there are issues of fact with respect to whether plaintiffs are indeed named additional insureds under the insurance policy and, if not, whether Sirius is estopped from denying coverage based upon the certificate of insurance, we decline to address the remaining issues raised by Sirius on appeal.

To the extent that the court determined that Sirius failed to provide timely notice of its disclaimer to Sevenson and/or Goodyear as claimants, we conclude that such a determination is premature. Pursuant to Insurance Law § 3420 (a) (2), an injured claimant has a direct cause of action against an insurer only after the injured claimant first obtains a judgment against the insured (see Lang v Hanover Ins. Co., 3 NY3d 350, 354-355). Here, neither Goodyear nor Sevenson has obtained a judgment against TJI, and thus both plaintiffs "have failed to fulfill the condition precedent" to seek relief directly from Sirius (id. at 355).
Entered: June 11, 2010

Nieves v. Castillo

Arnold DiJoseph, New York, for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 30, 2009, which granted defendants' motion for summary judgment dismissing the complaint for failure to show serious injury, unanimously affirmed, without costs.

Defendants carried their prima facie burden regarding plaintiff's claim of permanent injuries; contrary to plaintiff's assertion, defendants' medical expert's findings in this regard were based on objective tests. In opposition, plaintiff failed to raise an issue of fact, since one of her physicians did not opine as to causation of her claimed injuries (see Gibbs v Hee Hong, 63 AD3d 559, 559 [2009]), the other's conclusion that the accident had aggravated a degenerative condition of her cervical spine was unexplained and speculative (see Gorden v Tibulcio, 50 AD3d 460, 464 [2008]), and neither addressed defendants' medical expert's normal findings regarding plaintiff's lumbar spine,
shoulder, and knee (see Glover v Capres Contr. Corp., 61 AD3d 549, 549 [2009]). The medical opinions submitted in support of plaintiff's supplemental showing, based on MRIs and examinations more than four years after the accident, were too remote to be probative (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).

Defendants carried their burden regarding plaintiff's 90/180 claim based on her deposition testimony that she missed only six weeks of work (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 522-523 [2010]; Byong Yol Li v Canela, 70 AD3d 584, 584 [2010]). In opposition, plaintiff failed to raise an issue of fact, since she did not submit probative evidence of causation (see Amamedi v Archibala, 70 AD3d 449, 450 [2010]), medical evidence of her claimed inability to perform certain daily activities (see Weinberg v Okapi Taxi, Inc., __ AD3d __, 2010 NY Slip Op 3791 [May 4, 2010]), or documentation from her employer (see Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]).

Perl v. Meher

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Annette G. Hasapidis, South Salem, N.Y., for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Martin, J.), dated April 15, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Joseph Perl 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 established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff, Joseph Perl (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). The defendants' orthopedist, Dr. S. Farkas, provided a detailed explanation, including specific observations, for his conclusion that any restrictions in motion were self-imposed by the injured plaintiff and that there were no objective orthopedic findings which would indicate any disability, impairment, or limitation resulting from the accident (see Gonzales v Fiallo, 47 AD3d 760).

It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified (see Friscia v Mak Auto, Inc., 59 AD3d 492, 493; Fiorillo v Arriaza, 52 AD3d 465, 466; Duke v Saurelis, 41 AD3d 770, 771; Desamour v New York City Tr. Auth., 8 AD3d 326, 327), compared to the norms (see Fiorillo v Arriaza, 52 AD3d at 466; Malave v Basikov, 45 AD3d 539; Nociforo v Penna, 42 AD3d 514, 515; McNulty v Buglino, 40 AD3d 591), and based upon identified objective tests (see Sapienza v Ruggiero, 57 AD3d 643, 644; Gastaldi v Chen, 56 AD3d 420, 421; Young Hwan Park v Orellana, 49 AD3d 721; Murray v Hartford, 23 AD3d 629; Nozine v Sav-On Car Rentals, 15 AD3d 555, 556). These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment. The plaintiffs are also required to demonstrate restricted range of motion based on findings both contemporaneous to the accident (see Stevens v Sampson, 72 AD3d 793; Jack v Acapulco Car Serv., Inc., 72 AD3d 646; Sierra v Gonzalez First Limo, 71 AD3d 864; Little v Locoh, 71 AD3d 837) and upon recent findings (see Sham v B & P Chimney Cleaning & Repair Co. Inc., 71 AD3d 978; Carillo v DiPaola, 56 AD3d 712; Krauer v Hines, 55 AD3d 881, 882).

Here, Dr. Leonard Bleicher examined the injured plaintiff on May 2, 2005, shortly after the accident, as Dr. Bleicher was his treating physician. The affirmation of Dr. Bleicher, submitted in opposition to the defendants' motion for summary judgment, failed to identify the range of motion tests utilized by him, the numerical results of those tests, or the norms against which results are measured. The affirmation, therefore, failed to meet the requirements set forth in this Court's sound and well-established precedents.

We disagree with the suggestion of our dissenting colleagues that Dr. Bleicher's arguably adequate findings from the examination of the injured plaintiff on June 25, 2007, some two years after the accident, quantifying restrictions compared to norms and based upon objective tests, can, in effect, be stretched to remedy the multiple deficiencies of the 2005 findings which were made only days after the accident. While a physician's description of "norms" may be capable of transfer from one examination to another by that physician, the same cannot be said for the quantification of an examinee's restricted motion and of the objective tests utilized to measure restrictions, since such information may differ from one examination to the next.

Where, as here, the defendants established their prima facie entitlement to judgment as a matter of law, the burden shifted to the plaintiffs opposing summary judgment to raise in admissible form triable issues of fact (see Gaddy v Eyler, 79 NY2d at 956-957; Franco v Akram, 26 AD3d 461; D'Amato v Mandello, 2 AD3d 482). With respect to Dr. Bleicher's May 2, 2005, examination of the injured plaintiff, the plaintiffs failed to meet this burden. The result urged by our dissenting colleagues, that we deem the 2007 findings as somehow curing the shortcomings of the reported 2005 findings, is not supported by the applicable law and can only be reached by disregarding this Court's precedent which we are not prepared here to sanction.

We also disagree with our dissenting colleagues' conclusion that Dr. Bleicher's affirmation was sufficient to raise a triable issue of fact based upon a qualitative assessment of the injured plaintiff's condition, both contemporaneous to the accident and recently (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351). For a qualitative evaluation to suffice, the Court of Appeals has held that it must have "an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (id. at 350; see Dufel v Green, 84 NY2d 795, 798). Here, the plaintiffs did not argue the issue of qualitative assessment in their appellate submission. In any event, Dr. Bleicher's failure to identify, inter alia, the objective tests utilized by him during his 2005 examination of the injured plaintiff deprives the plaintiffs of admissible qualitative assessment opinion.

The plaintiffs' remaining contentions are without merit.
DILLON, J.P., MILLER and BALKIN, JJ., concur.
AUSTIN, J., dissents and votes to affirm the order appealed from, with the following memorandum in which LEVENTHAL, J., concurs:

By ruling that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), failed to strictly comply with a standard of medical proof which can be found nowhere in Insurance Law § 5102(d), the majority bars a colorably meritorious claim from reaching a jury. Because I believe that such an approach is contrary to New York's long-standing policy of preferring cases to be determined on the merits (see e.g. Bunch v Dollar Budget, Inc., 12 AD3d 391), I respectfully dissent and vote to affirm the order appealed from.

In general, "[i]t is well settled that summary judgment is a drastic remedy that is to be granted only where there is no clear triable issue of fact" (Mosheyev v Pilevsky, 283 AD2d 469, 469; see Andre v Pomeroy, 35 NY2d 361, 364). "Even the color of a triable issue forecloses the remedy" (Rudnitsky v Robbins, 191 AD2d 488, 489; see Matter of Cuttitto Family Trust, 10 AD3d 656, 657). Moreover, in deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion (see Pearson v Dix McBride, LLC, 63 AD3d 895; Mosheyev v Pilevsky, 283 AD2d at 469).

While I agree with the majority that the defendants met their prima facie burden of demonstrating their 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, I believe that the Supreme Court properly denied the motion for summary judgment dismissing the complaint, because a reading of the entirety of the physician's affirmation tendered by the injured plaintiff in opposition was sufficient to raise a triable issue of fact.

In opposition to the motion, the injured plaintiff submitted the affirmation of Dr. Leonard Bleicher, his treating physician. Dr. Bleicher concluded that the injured plaintiff suffered from "numerically and objectively determined restrictions of range [of] motion of both knees, cervical and lumbar spine," and that those "significant and permanent injuries . . . represent impairments with limitation of body functions [and] are causally related to [the subject accident]." In his affirmation, Dr. Bleicher noted that when he examined the injured plaintiff on May 2, 2005, six days after the subject accident, and as a prelude to treatment rather than litigation, "[t]he patient's range of motion was less than 60% of normal in the cervical and lumbar spine." Additionally, Dr. Bleicher reported finding a "left and right knee extension decrease" during that examination. Based on his findings and the fact that the injured plaintiff had neither suffered any similar symptoms before the accident nor had any prior injuries or medical conditions which would result in such findings, Dr. Bleicher concluded that his findings on May 2, 2005, were related to the subject accident.

Dr. Bleicher further affirmed that when he re-examined the injured plaintiff on June 25, 2007, he conducted cervical/thoracic, lumbosacral spine, and knee joint range-of-motion studies which revealed significant limitations and deficiencies. In his affirmation, he detailed the results of the range-of-motion tests conducted on June 25, 2007, and the norms against which he measured those results in arriving at his conclusions.

I disagree with my colleagues' conclusion that Dr. Bleicher's affirmation was insufficient to raise a triable issue of fact. Although it failed to set forth the range-of-motion tests performed, the numerical results of those tests, or the norms against which those tests were measured in connection with the limitations noted during the May 2005 examination, such information was provided in connection with the findings made during the June 2007 examination. Because range-of-motion testing and norms were, in fact, set forth in Dr. Bleicher's affirmation, it elevates form over substance to conclude that his affirmation is without evidentiary value because those norms were not specifically associated with the findings made during the May 2005 examination.

Put another way, from the four corners of his affirmation, Dr. Bleicher avers objective findings based on a norm which is stated once instead of the usual two times. Based upon the finding that, six days post-accident, the plaintiff suffered a greater than 60% loss of range of motion against the norm which is set forth later in Dr. Bleicher's affirmation, the plaintiff was properly found to have met his burden of proof (see Dufel v Green, 84 NY2d 795, 798 [an expert's designation of a numeric percentage of a plaintiff's loss of range of motion sufficed to establish a claim of serious injury]; Lopez v Senatore, 65 NY2d 1017). Any perceived deficiencies in Dr. Bleicher's findings could be subjected to the crucible of cross-examination at trial (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 ["(A)n expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. . . When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact" (citations omitted)]).

The Toure court did not establish a precise formula to which a treating doctor's submission must rigidly adhere. The majority assumes that days after an accident, an injured plaintiff presents to his or her doctor for the purpose of litigation rather than treatment. Research reflects no case law which mandates that a treating physician record his or her findings of that initial examination in a particular manner. Rather, so long as the affirmation of the treating physician indicates that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff's range of motion, the threshold set forth in Insurance Law § 5102(d) should be deemed to be satisfied. The cases cited by the majority with regard to a treating physician's contemporaneous examination are not inconsistent with this view (see Stevens v Sampson, 72 AD3d 793 [the plaintiff submitted an affirmed statement of a physician who did not treat the plaintiff at the time of the accident]; Jack v Acapulco Car Serv, Inc., 72 AD3d 646 [the plaintiff's first treatment came four years after the accident]; Sierra v Gonzalez First Limo, 71 AD3d 864, 865 [absence of "any range of motion findings which were contemporaneous with the subject accident"]; Little v Licoh, 71 AD3d 837 [unaffirmed report of treating physician insufficient to meet the plaintiff's burden]).

To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effectively turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation. This unfortunate result does little, if anything, to promote the legislative purpose of Insurance Law § 5102(d) which was to "weed out frivolous claims" (Dufel v Green, 84 NY2d at 798; see Licari v Elliott, 57 NY2d 230, 234-235). On the other hand, years after the accident, and in consultation with defense counsel, the defendants' doctors see an injured plaintiff solely for the litigation purpose of dismissal of that plaintiff's claim. This places an injured plaintiff and his or her treating physician at a severe disadvantage in opposing a defendant's summary judgment motion.

The majority fails to account for differences in approach by treating doctors which convey the required information in a less than perfect way. It should be of no moment that some doctors do, in fact, record their findings in such a way that satisfies the majority view.

I believe that the injured plaintiff, through Dr. Bleicher's affirmation, adequately raised a triable issue of fact as to whether he sustained a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d at 353; Sanevich v Lyubomir, 66 AD3d 665; Casey v Mas Transp., Inc., 48 AD3d 610, 611; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431).
Accordingly, in my view, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

Garza v. Taravella

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered September 29, 2009 in a personal injury action. The order, insofar as appealed from, denied in part the motion of defendant Michael A. Taravella for summary judgment and granted in part the cross motion of plaintiff for partial summary judgment.

HAGELIN KENT LLC, BUFFALO (JOHN E. ABEEL OF COUNSEL), FOR DEFENDANT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle collided with a vehicle operated by Michael A. Taravella (defendant) and owned by defendant Carolyn A. Wozniak. Defendant moved for summary judgment dismissing the complaint against him on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and plaintiff cross-moved for partial summary judgment on liability. Contrary to the contention of defendant, we conclude that Supreme Court properly denied those parts of his motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Although we agree with defendant that he met his initial burden on those parts of the motion by submitting the report of the physician who examined plaintiff at his request establishing that plaintiff's injuries had resolved, we conclude that plaintiff raised a triable issue of fact in opposition. Plaintiff submitted the affidavit of her treating chiropractor and the affirmations of her treating physicians indicating that she sustained neck and back injuries as a result of the accident and that those injuries required surgery, would continue to limit her cervical ranges of motion and rendered her permanently disabled. Defendant's contention that those submissions failed to establish that plaintiff's injury was not the result of a preexisting condition is raised for the first time on appeal and thus is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).

We reject defendant's further contention that plaintiff failed to explain a six-month gap in treatment. "[P]laintiff adequately explained the significant gap in her treatment history by stating in her affidavit that she stopped treatment [for] about [six] months after the subject accident because . . . she could not afford to personally pay for further treatment" (Jules v Barbecho, 55 AD3d 548, 549; see Francovig v Senekis Cab Corp., 41 AD3d 643, 644; Black v Robinson, 305 AD2d 438, 439-440; see generally Pommells v Perez, 4 NY3d 566, 574). Contrary to defendant's contention, there is no evidence in the record establishing that plaintiff knew that her medical bills would be paid by no-fault insurance during that six-month period (cf. McConnell v Freeman, 52 AD3d 1190, 1191).

We conclude that the court properly granted that part of plaintiff's cross motion for partial summary judgment on the issue of defendant's negligence. The evidence submitted by plaintiff in support of her cross motion, including defendant's deposition testimony, established that defendant struck the side of her vehicle after entering the roadway from a driveway and that his view of oncoming traffic was obstructed. "The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed" (Vehicle and Traffic Law § 1143). "Defendant testified at [his] deposition that [he] saw plaintiff for the first time when [he] had already begun to pull out into the roadway and that [he] drove into the roadway despite the fact that [his] vision of the roadway was obscured by a legally parked vehicle. Plaintiff thus established that defendant was negligent as a matter of law in failing to see that which [he] should have seen" (Whitcombe v Phillips, 61 AD3d 1431; see Mazza v Manzella, 49 AD3d 609; Ferrara v Castro, 283 AD2d 392), and defendant failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

Lauffer v. Macey

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered May 15, 2009 in a personal injury action. The order, insofar as appealed from, denied in part the motion of defendants for summary judgment.

HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
JEFFREY FREEDMAN ATTORNEYS AT LAW, BUFFALO (BRIAN D. KNAUTH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed.

Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Alysia J. Lauffer (plaintiff) when the motor vehicle she was operating was rear-ended by a vehicle owned by defendant Patricia A. Macey and operated by defendant Jennifer L. Macey. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under the four categories alleged in the complaint, as amplified by the bill of particulars, i.e., permanent loss of use, permanent consequential limitation of use, significant limitation of use, and 90/180-day categories. We conclude that Supreme Court erred in granting the motion only insofar as plaintiffs alleged that plaintiff sustained a serious injury under the permanent loss of use category and that the court should have granted the motion in its entirety. Defendants met their initial burden on the motion by submitting an affirmed report of a physician who examined plaintiff at their request and concluded that there was no objective evidence that plaintiff sustained a serious injury as a result of the accident (see e.g. McConnell v Freeman, 52 AD3d 1190, 1191; Lux v Jakson, 52 AD3d 1253; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Weaver v Town of Penfield, 68 AD3d 1782, 1784). The certified medical records of one of plaintiff's treating physicians submitted by plaintiffs in opposition to the motion were insufficient to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). None of the findings of that physician is based on objective evidence of an injury (see e.g. Beaton v Jones, 50 AD3d 1500, 1502; Calucci v Baker, 299 AD2d 897), and, in any event, to the extent that the physician concluded that plaintiff's symptoms were caused by the accident, that conclusion is speculative and conclusory (see e.g. Alloway v Rodriguez, 61 AD3d 591; Innocent v Mensah, 56 AD3d 379).

Delarosa v. McLedo

Andrew Hirschhorn, Rosedale, N.Y., for appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum], of
counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered August 26, 2009, 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 met their prima facie burden 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). In opposition, the plaintiff failed to raise a triable issue of fact.

While the plaintiff submitted medical evidence that revealed the existence of significant limitations in the cervical and lumbar regions of his spine based on a recent examination by Dr. Paul Beck, he failed to offer objective medical evidence of significant limitations in those regions of his spine that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). While the plaintiff relied on the affirmed medical reports of Dr. Richard Morgan, Dr. Morgan did not examine the plaintiff until more than one year after the subject accident. Without findings contemporaneous with the accident, the plaintiff was unable to raise a triable issue of fact as to whether he sustained a serious injury to the cervical or lumbar region of his spine under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Jack v Acapulco Car Service, Inc., 72 AD3d 646; Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498).

Resek v. Morreale

Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Marsha S. Weiss
of counsel), for appellants.
Eisenberg & Kirsch, Liberty, N.Y. (Michael D. Wolff of
counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Sproat, J.), dated September 11, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Martin Resek, Jr., did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff Martin J. Resek, Jr. (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 opposition, the plaintiffs failed to raise a triable issue of fact.

Initially, the magnetic resonance imaging report of the injured plaintiff's left shoulder, dated August 30, 2004, as authored by Dr. Frank Starvaggi, and the medical report of Dr. David T. Stamer dated September 14, 2004, were insufficient to raise a triable issue of fact because they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Lozusko v Miller, 72 AD3d 908; Bleszcz v Hiscock, 69 AD3d 890; Singh v Mohamed, 54 AD3d 933; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514).

In an affirmation, Dr. William O. Thompson stated that he examined the injured plaintiff for the first time on September 28, 2006, and again on May 19, 2009. Dr. Thompson failed to set forth any findings from his initial examination of the injured plaintiff. As to his most recent examination of the injured plaintiff, on May 19, 2009, Dr. Thompson noted that the injured plaintiff had "restricted" range of motion in the left shoulder. However, Dr. Thompson did not set forth any objective testing he did in order to arrive at that conclusion (see Fiorillo v Arriaza, 52 AD3d 465; Murray v Hartford, 23 AD3d 629; Nozine v Sav-On Car Rentals, 15 AD3d 555, 556; Bailey v Ichtchenko, 11 AD3d 419, 420; Kauderer v Penta, 261 AD2d 365, 366). Dr. Thompson also failed to reconcile his findings of limitation in the plaintiff's left shoulder in May 2009, as set forth in his affirmation, with the report of the injured plaintiff's other treating physician, Dr. Gary Fink, who found no limitations in the injured plaintiff's left shoulder less than one month post-accident (see Raleigh v Ram, 60 AD3d 747).

The plaintiffs failed to proffer any competent medical evidence demonstrating the existence of significant limitations in the injured plaintiff's left shoulder that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). While the plaintiffs relied upon the affirmed medical report of Dr. Paul Jones, an independent orthopedist who examined the injured plaintiff on January 28, 2005, more than five months post-accident, this was not contemporaneous with the accident. Without such contemporaneous findings, the plaintiffs were unable to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury to his left shoulder under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Jack v Acapulco Car Service, Inc., 72 AD3d 646; Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498). Furthermore, while Dr. Jones set forth left shoulder range of motion findings from January 28, 2005, he failed to compare those findings to what is normal (see Johnson v Tranquille, 70 AD3d 645; Morris v Edmond, 48 AD3d 432).

The mere existence of a tear in tendons, as well as a tear in a ligament, 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 Little v Locoh, 71 AD3d 837; Ciancio v Nolan, 65 AD3d 1273, 1274; Niles v Lam Pakie Ho, 61 AD3d 657; Sealy v Riteway-1, Inc., 54 AD3d 1018, 1019; Kilakos v Mascera, 53 AD3d 527, 528-529; Cornelius v Cintas Corp., 50 AD3d 1085, 1087). Such evidence was clearly lacking here.

Sternberg v. Sipzner

Michael B. Wolkofsky (Mitchell Dranow, Mineola, N.Y., of
counsel), for appellants.
Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael
F. Ingham of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Satterfield, J.), entered October 8, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Marc B. Sternberg did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff Marc B. Sternberg (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 opposition, the plaintiffs failed to raise a triable issue of fact.

The Supreme Court properly concluded that the plaintiffs failed to submit objective medical evidence by which the claimed aggravation of the injured plaintiff's preexisting injuries or new injuries could be measured (see McNeil v Dixon, 9 AD3d 481).

The plaintiffs failed to submit competent medical evidence that the injuries allegedly sustained by the injured plaintiff in the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).

Since the plaintiffs failed to raise a triable issue of fact, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

Torres v. Cannella

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Sol Z. Sokel of counsel),
for appellant Maria Cannella.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P.
O'Shaughnessy of counsel), for appellant Luis
Reyes.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Luis Reyes appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), dated July 29, 2009, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendant Maria Cannella separately appeals, as limited by her brief, from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The present action arises from a three-car motor vehicle accident which occurred on the afternoon of September 1, 2004, in Nassau County. After joinder of issue, the defendant Luis Reyes moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Thereafter, the defendant Maria Cannella moved for the same relief on that ground, and also on the ground that she was not at fault in the happening of the accident.

Reyes failed to meet his prima facie burden 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). Reyes' motion papers failed to adequately address the plaintiff's claim, clearly set forth in her verified bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Collins v Leung, 71 AD3d 814; Smith v Quicci, 62 AD3d 858). Cannella similarly failed to meet her burden in that regard, and also failed to eliminate all triable issues of fact (see Alvarez v Prosp. Hosp., 68 NY2d 320, 324) as to whether any alleged negligence on her part was a proximate cause of the contact between the car which she was operating and the car in which the plaintiff was riding as a passenger.

Since Reyes and Cannella both failed to meet their prima facie burdens, it is unnecessary to consider whether the papers submitted in opposition were sufficient to raise a triable issue of fact (see Collins v Leung, 71 AD3d 814). Accordingly, the Supreme Court properly denied Reyes' motion and Cannella's motion.

Foley v. Cunzio

Calendar Date: April 23, 2010
Before: Cardona, P.J., Spain, Stein, McCarthy and Egan Jr., JJ.

Law Offices of Rebecca Millouras-Lettre, P.P.L.C.,
Kingston (Sharon A. Graff of counsel), for appellant.
Kaplan, Hanson, McCarthy, Adams, Finder &
Fishbein, Albany (Paul G. Hanson of counsel), for respondent.

MEMORANDUM AND ORDER
Stein, J.

Appeal from an order of the Supreme Court (Platkin, J.), entered June 30, 2009 in Ulster County, which granted defendant's motion for summary judgment dismissing the complaint.

In July 2005, plaintiff's vehicle was proceeding through an intersection when it was struck on the driver's side by defendant's vehicle. Plaintiff subsequently commenced this action, claiming serious injury within the meaning of Insurance Law § 5102 (d). Specifically, plaintiff claimed impairment to and loss of function of her spinal system and permanent injury to her cervical spine, exacerbated neck pain, lower back pain and migraine headaches. Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury. Supreme Court granted defendant's motion, prompting this appeal.[FN1]

As the proponent of the summary judgment motion, defendant had the initial burden of submitting evidence establishing that plaintiff did not suffer a causally related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Nowak v Breen, 55 AD3d 1186, 1187 [2008]). In support of his motion, defendant submitted, among other things, plaintiff's medical records and the report of Arnold Goran, a neurosurgeon who performed an independent medical examination of plaintiff in 2007. After examining plaintiff and reviewing a 2006 MRI of her lumbar spine, Goran concluded there was no indication of a herniated disc, and that the lower back pain reported by plaintiff was related to degenerative disc disease. Goran also concluded that plaintiff had excellent movement of her lumbar spine and was not in need of treatment in that area. Further, regarding whether the injury to the lumbar spine was causally related to the 2005 accident, plaintiff's medical records reveal that she complained of lower back pain to her physical therapist and was treated for such pain following an automobile accident in 2002. Contrary to plaintiff's contention, we find that this proof was sufficient to shift the burden to plaintiff to "set forth competent medical evidence based upon objective medical findings and tests to support [her] claim of serious injury and to connect the condition to the [2005] accident" (Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; accord Wolff v Schweitzer, 56 AD3d 859, 861 [2008]).

In light of evidence in the record that she complained about lower back pain following her 2002 accident, plaintiff was required to "come forward with evidence addressing defendant's claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580 [2005]; see Coston v McGray, 49 AD3d 934, 935 [2008]). As such, it was necessary for plaintiff's expert to "adequately address [her] preexisting back condition" (Franchini v Palmieri, 1 NY3d 536, 537 [2003]) and degenerative disc disease (see Falkner v Hand, 61 AD3d 1153, 1154-1155 [2009]). To that end, plaintiff submitted the affidavit of Loren Rosenthal, her treating neurologist since 2006. Based upon the results of an EMG and nerve conduction studies performed on plaintiff, Rosenthal opined that plaintiff suffers from lumbar radiculopathy causally related to the 2005 accident, which resulted in a significant limitation of the use of her lumbar spine. Rosenthal premised his conclusion that this condition is causally related to the 2005 accident on a lack of evidence of any significant symptoms of lower back pain before 2005 and the fact that plaintiff's injury was consistent with being hit on her left side. However, the first basis for this conclusion is directly contradicted by the record evidence of plaintiff's prior complaint of lower back pain subsequent to the 2002 automobile accident, followed by numerous references in plaintiff's medical records of treatment to her back. In addition, Rosenthal's opinion as to causation completely fails to address the indication of degenerative disc disease apparent in the 2006 MRI, without any evidence of herniation. Nor did Rosenthal explain his findings in April 2007 that plaintiff had "full flexion and extension of the lumbar spine" and, in August 2007, that she had "good lumbar flexion and extension." As Rosenthal's affidavit does not adequately address plaintiff's preexisting condition and degenerative disc disease and provides no objective basis for concluding that plaintiff's condition is causally related to the 2005 accident, plaintiff has failed to raise an issue of fact sufficient to withstand summary judgment (see Franchini v Palmieri, 1 NY3d at 537; Falkner v Hand, 61 AD3d at 1155; Wolff v Schweitzer, 56 AD3d at 862-863; Coston v McGray, 49 AD3d at 936).

Footnote 1: We note that, inasmuch as plaintiff only argues on appeal that she suffered a causally related serious injury to her lumbar spine within the meaning of Insurance Law § 5102 (d), her claims of impairment or loss of use of her neck and cervical spine are deemed abandoned (see Flater v Brennan, 173 AD2d 945, 946 [1991]).

In the Matter of  GEICO v. O’Neil

Bryan M. Rothenberg, Hicksville, N.Y. (Kenneth F. Popper of
counsel), for appellant.
Gail S. Lauzon (Montfort, Healy, McGuire & Salley, Garden
City, N.Y. [Donald S. Neuman, Jr.], of
counsel), for petitioner-respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, AIU Insurance Company appeals from an order of the Supreme Court, Queens County (Rios, J.), dated May 19, 2009, which granted the petition and directed it to provide insurance coverage for the subject loss.

ORDERED that the order is affirmed, with costs.

The appellant AIU Insurance Company (hereinafter AIU) does not dispute that in seeking to stay arbitration under a supplemental uninsured/underinsured motorist endorsement, the claimant's insurer, Government Employees Insurance Company (hereinafter GEICO), met its prima facie burden of showing that the offending vehicle was insured by AIU on the date of the accident by submitting a New Jersey Department of Motor Vehicles (hereinafter DMV) record (see Matter of Integon Natl. Ins. Co. v Montagna, 69 AD3d 626; Matter of Eagle Ins. Co. v Kapelevich, 307 AD2d 927; Matter of CGU Ins. Co. v Greatheart, 301 AD2d 649; Matter of State Farm Mut. Auto. Ins. Co. v Yeglinski, 79 AD2d 1029, 1029). The burden then shifted to AIU to prove that the offending vehicle was never insured by it or that any policy covering the offending vehicle had been canceled prior to the accident date (see Matter of Integon Natl. Ins. Co. v Montagna, 69 AD3d 626; Matter of State Farm Mut. Auto. Ins. Co. v Noble, 45 AD3d 854; Matter of Globe Indem. Co. v Lawrence, 210 AD2d 334; Matter of State Farm Mut. Auto. Ins. Co. v Yeglinski, 79 AD2d at 1029). Contrary to AIU's contention, it did not rebut the presumption of insurance coverage since the affidavit of its junior underwriter did not rebut the DMV record submitted by GEICO, which indicated that the offending vehicle was insured by AIU on the accident date. Moreover, the junior underwriter's affidavit did not provide any grounds upon which to find that the information set forth in the DMV record relating to the offending vehicle was erroneous. Since AIU's opposition did not rebut the presumption of coverage set forth by GEICO, AIU failed to meet its burden (see Matter of State Farm Mut. Auto. Ins. Co. v Noble, 45 AD3d 854; Matter of CGU Ins. Co. v Greatheart, 301 AD2d 649; Country Wide Ins. Co. v Allstate Ins. Co., 223 AD2d 664; Matter [*2]of Globe Indemn. Co. v Lawrence, 210 AD2d 334). Accordingly, the Supreme Court properly granted the petition and properly directed AIU to provide coverage for the subject loss.
FISHER, J.P., DICKERSON, ENG and BELEN, JJ., concur.

Litvinov v. Hodgson and New York Central Mutual

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered February 24, 2009 in a personal injury action. The order, among other things, denied the cross motion of defendants Jack Foy and New York Central Mutual Fire Insurance Company for summary judgment dismissing the complaint against them.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
DANIEL J. HARTMAN, BUFFALO, FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the order so appealed from is modified on the law by denying the motion in part and granting the cross motion in part and vacating the directive to disclose documents prepared after September 29, 2003, and by providing that the directive to disclose documents prepared on or before September 29, 2003 is subject to an in camera review of those documents and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: Plaintiff was injured in July 2003 when he fell while working on a porch located on rental property owned by defendants Eileen M. Hodson and Jeremy L. Hodson and managed by defendant Charles Renna. The property was insured under a commercial insurance policy issued by defendant New York Central Mutual Fire Insurance Company (NYCM). At the time of the accident, plaintiff was employed by Richard J. Laspro, doing business as Home Club of America. After the accident, NYCM instructed defendant Jack Foy to investigate and possibly settle plaintiff's claims arising from the accident. On September 29, 2003, plaintiff signed a release with respect to all claims against the Hodsons and Renna in exchange for $4,000. Thereafter, plaintiff commenced this action seeking, inter alia, rescission of the release based on fraud on the part of Foy and NYCM.

We conclude that Supreme Court properly denied the cross motion of Foy and NYCM for summary judgment dismissing the complaint against them inasmuch as there is an issue of fact whether the release was indeed procured by fraud. It is well established that "a general release is governed by principles of contract law" (Mangini v McClurg, 24 NY2d 556, 562), and that a release " should not be set aside unless plaintiff demonstrates duress, illegality, fraud, or mutual mistake' " (Schroeder v Connelly, 46 AD3d 1439, 1440). Although there is no evidence in the record that Foy made any false statements directly to plaintiff, "it is not essential that a representation should be addressed directly to the party who seeks a remedy for having been deceived and defrauded by means thereof" (Eaton Cole & Burnham Co. v Avery, 83 NY 31, 33-34; see Desser v Schatz, 182 AD2d 478, 479-480; John Blair Communications v Reliance Capital Group, 157 AD2d 490, 492). Rather, fraud may be found " where a false representation is made to a third party, resulting in injury to the plaintiff' " (Ruffing v Union Carbide Corp., 308 AD2d 526, 528).

Here, even assuming, arguendo, that Foy and NYCM met their initial burden on the cross motion, we conclude that plaintiff raised a triable issue of fact whether Foy made false representations to plaintiff's employer, Laspro, for the purpose of inducing plaintiff's detrimental reliance on those representations (see Eaton Cole & Burnham Co., 83 NY at 35-36). Although Laspro was not an actual agent of NYCM or plaintiff, Foy knew that Laspro was acting as an intermediary between plaintiff and NYCM, as evidenced by the fact that the two meetings between Foy and plaintiff were set up by Foy through Laspro and took place at Laspro's residence. Laspro testified at his deposition that Foy told him, inter alia, that NYCM had no liability with respect to plaintiff's accident, that plaintiff did not need an attorney, and that the $4,000 paid by NYCM to plaintiff would be in addition to workers' compensation payments. It is undisputed that Laspro relayed that information to plaintiff before the release was signed.

We further conclude that the court erred in denying in its entirety the cross motion of Foy and NYCM with respect to the alternative relief sought by them, i.e., a protective order concerning the information sought in plaintiff's motion to compel disclosure, including the entire claim file of NYCM. It is well established that an insurance company's claim file is conditionally exempt from disclosure as material prepared in anticipation of litigation (see CPLR 3101 [d] [2]; Lamberson v Village of Allegany, 158 AD2d 943). Nevertheless, material prepared in anticipation of litigation may be subject to disclosure upon a showing of substantial need and the inability "without undue hardship to obtain the substantial equivalent" of the material from another source (CPLR 3101 [d] [2]) and, here, plaintiff made such a showing (see Dempski v State Farm Mut. Auto. Ins. Co., 249 AD2d 895, 896). In order to establish his entitlement to rescission of the release based on fraud, plaintiff must establish, inter alia, a material misrepresentation of fact and defendants' knowledge of its falsity with intent to deceive (see Liling v Segal, 220 AD2d 724, 726). The handwritten notes made by Foy in the claim file may be the only direct evidence of his state of mind with respect to the release, particularly in light of the fact that he testified at his deposition that he could not recall the specifics of his conversations with plaintiff or Laspro (see Gaglia v Wells, 112 AD2d 138, 139; cf. Ainsworth v Union Free School Dist. No. 2, Queensbury, 38 AD2d 770, 771). In addition, we note that the attorney representing Foy directed him at his deposition not to answer questions concerning his evaluation of plaintiff's claims or the reasonableness of the settlement amount. Moreover, plaintiff is unable to obtain those notes from any other source (see Dempski, 249 AD2d at 896).

We thus conclude that the court should have granted in part the cross motion of Foy and NYCM and should have denied in part plaintiff's motion to compel disclosure inasmuch as the motion is overly broad to the extent that it sought NYCM's entire claim file. Plaintiff is entitled only to documents in the claim file that were prepared from the date of the accident until and including the date of execution of the release, because anything prepared for the claim file after the release was executed is not relevant to plaintiff's claims (see id.). We therefore modify the order accordingly, and we remit the matter to Supreme Court for an in camera review of those documents prepared on or before the date of execution of the release to determine what documents are material and necessary in the prosecution of plaintiff's action and what documents, if any, should be shielded from disclosure on the ground of privilege (see CPLR 3101 [d] [2]; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378).

All concur except scudder, P.J., and Smith, J., who dissent and vote to reverse in accordance with the following Memorandum: We respectfully dissent. Unlike the majority, we would grant the cross motion of New York Central Mutual Fire Insurance Company and its agent, Jack Foy (collectively, defendants), for summary judgment dismissing the complaint against them.

Several months after injuring his arm in an accident at the home of defendants Eileen M. Hodson and Jeremy L. Hodson, plaintiff signed a release of all claims against the Hodsons arising from the accident. During his deposition testimony, plaintiff acknowledged that he read and understood the entire release before signing it, i.e., he understood that by signing it he would receive $4,000, and he admitted that he received that sum of money.

"Where, as here, the language of a release is clear and unambiguous, the signing of a release is a jural act' binding on the parties" (Booth v 3669 Delaware, 92 NY2d 934, 935; see Mangini v McClurg, 24 NY2d 556, 563-564; Marlowe v Muhlnickel, 294 AD2d 830, 831). A release "should never be converted into a starting point for renewed litigation except under circumstances and under rules which would render any other result a grave injustice. It is for this reason that the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake, must be established or else the release stands" (Mangini, 24 NY2d at 563). Here, we reject the contention of plaintiff that his consent was the result of mutual mistake, mistake on his own part, or fraud and misrepresentation on the part of Foy.

With respect to plaintiff's allegation of mutual mistake, we note the well-established principle that a "contract or stipulation entered into under a mutual mistake of fact is subject to rescission if such mutual mistake existed at the time the contract was entered into and is so substantial that the agreement does not represent a true meeting of the parties' minds" (Carney v Carozza, 16 AD3d 867, 868-869). We conclude, however, that plaintiff failed to establish that such a mistake existed inasmuch as, in support of that contention, he alleges only that he now believes that his claim is worth more than he received, and that he did not know that his workers' compensation carrier would assert a claim against the settlement proceeds. Those allegations do not concern mutual mistake but, rather, they concern an alleged unilateral mistake on the part of plaintiff, and those allegations in any event also are insufficient to raise an issue of fact whether the release should be rescinded based on plaintiff's unilateral mistake. The fact that plaintiff "may not have understood collateral consequences of the release without pursuing the matter further with his workers' compensation insurer is of no moment insofar as [defendants are] concerned" (Elliott v Gehen, 105 AD2d 1112, 1113, affd 64 NY2d 832), and "plaintiff cannot avoid the release by now claiming that he did not understand its terms" (Finklea v Heim, 262 AD2d 1056, 1057). It is well settled that "a mere unilateral mistake on the part of [plaintiff] with respect to the meaning and effect of the release . . . does not constitute an adequate basis for invalidating a clear, unambiguous and validly executed release" (Booth, 242 AD2d 921, 922, affd 92 NY2d 934).

Plaintiff's allegations of fraud and misrepresentation on the part of Foy are similarly insufficient to raise an issue of fact whether the release should be rescinded. "A party seeking to set aside a release on the ground of fraud bears the burden of establishing a material misrepresentation of fact, made with knowledge of its falsity, with intent to deceive, justifiable reliance and damages' . . . The plaintiff's allegations of fraud[] are, on their face, insufficient" (Liling v Segal, 220 AD2d 724, 726). Here, "[t]he fraudulent misrepresentations alleged by [plaintiff] were not made by [defendants] and [plaintiff has] produced no evidence that [defendants] participated in the alleged fraud" (Downes v Aran, 229 AD2d 1025, lv dismissed in part and denied in part 89 NY2d 911; see Key Bank v Ryan, 132 AD2d 220, 222-223). Finally, although "a unilateral mistake induced by fraud will support a claim for rescission . . ., plaintiff's claims of fraud are insufficient, as previously noted" (Angel v Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 369-370).

Consequently, inasmuch as defendants met their initial burden with respect to the validity of the general release and plaintiff failed to raise a triable issue of fact, Supreme Court erred in denying the cross motion of defendants for summary judgment dismissing the complaint against them (see Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 AD3d 592; Marlowe, 294 AD2d at 831). In view of our determination with respect to the cross motion, we conclude that plaintiff's motion to compel disclosure with respect to defendants is moot. We therefore would reverse the order, grant the cross motion, dismiss the complaint against defendants, and dismiss plaintiff's motion.

 

In re IDS Property Casualty Insurance Co. v. Wynter

DeCicco, Gibbons & McNamara, P.C., New York (Phillip A.
DeCicco and Daniel E. DeCicco of counsel), for appellant.
Robert P. Sharron & Associates, P.C., New York (Robert P.
Sharron of counsel), for respondent.

Order, Supreme Court, New York County (Leslie S. Lowenstein, Special Referee), entered on or about February 26, 2010, which denied petitioner's application to stay arbitration of respondent's uninsured motorist claim, unanimously affirmed, without costs.

The record establishes that, at the time of the accident respondent was a passenger in an uninsured motor vehicle. He and the driver of the vehicle, a fellow employee, were on their way to a store where the driver intended to carry out a personal errand unrelated to work. Since respondent and the driver were not acting within the scope of their employment, workers' compensation, if it is a remedy, is not respondent's exclusive remedy (see Workers' Compensation Law § 29[6]; Macchirole v Giamboi, 97 NY2d 147, 150 [2001]).

Nassau Plaza Associates, L.P.,v. Greater New York Mutual Insurance Company

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David
Hess of counsel), for appellant.
Naidich Wurman Birnbaum & Maday, LLP, Great Neck, N.Y.
(Robert P. Johnson of counsel), for
respondents.

DECISION & ORDER

In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in an underlying action entitled Fernandez v Nassau Plaza Associates, L.P., pending in the Supreme Court, Queens County, under Index No. 14042/07, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), entered August 20, 2009, which denied its motion for summary judgment.

ORDERED that the order is affirmed, with costs, upon searching the record, summary judgment on the complaint is awarded to the plaintiffs, and the matter is remitted to the Supreme Court, Queens County, for entry of a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in the underlying action.

In response to the defendant's motion for summary judgment on the ground of late notice, the plaintiffs submitted evidence demonstrating, as a matter of law, that they provided the defendant with timely notice under the terms of the subject insurance policy. In this regard, the notice given by the plaintiffs complied with the requirements of the "Notice To Company" endorsement set forth in the policy, since the plaintiffs gave notice once the worker who allegedly was injured on their property had exhausted all avenues of administrative and judicial review of the rejection of his claim for Workers' Compensation benefits. Hence, in accordance with the endorsement, the notice was given by the plaintiffs as soon as they were "definitely made aware" that the worker's injuries constituted a liability matter within the coverage of the policy, rather than a Workers' Compensation matter. To the extent that the defendant urges adoption of an alternative interpretation of the notice endorsement which would have required notice to be given at an earlier point in the Workers' Compensation proceedings, we note that the alternative interpretation establishes, at best, the existence of an ambiguity in the endorsement (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326; NIACC, LLC v Greenwich Ins. Co., 51 AD3d 883, 884), which must be construed in favor of the plaintiffs and against the defendant (see generally White v Continental Cas. Co., 9 NY3d 264, 267; Charles F. Evans Co. v Zurich Ins. Co., 95 NY2d 779, 780-781; Essex Ins. Co.v Laruccia Constr., Inc., 71 AD3d 818).

The defendant's remaining contention is without merit.

This Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Grabowski v Consolidated Edison Co. of N.Y., 72 AD3d 888; Rivera v Port Auth. of N.Y. & N.J., 69 AD3d 917). Accordingly, under the circumstances, summary judgment is awarded to the plaintiffs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

Jual Construction Ltd. v. A.C. Edwards, Inc.

Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Peter C.
Contino, Cheryl F. Korman, and Harris J. Zakarin of counsel), for appellant.

DECISION & ORDER

In an action to recover damages for negligence in the procurement of insurance coverage and breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated September 25, 2009, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

An insurance agent or broker may be held liable under theories of breach of contract or negligence for failing to procure insurance (see Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792, 793; Mickey's Rides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d 328, 329; see also Katz v Tower Ins. Co. of N.Y., 34 AD3d 432). An insured must show that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction (see Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d at 793-794; Mickey's Rides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d at 329; Reilly v Progressive Ins. Co., 288 AD2d 365, 365-366). Liability is "limited to that which would have been borne by the insurer had the policy been in force" (Structural Bldg. Prods. Corp. v Business Ins. Agency, 281 AD2d 617, 620, quoting American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 346).

Here, the defendant, A.C. Edwards, Inc., failed to meet its prima facie burden of demonstrating its entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied the motion for summary judgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

Massa v. Nationwide Mutual

Calendar Date: April 27, 2010
Before: Peters, J.P., Rose, Stein, McCarthy and Garry, JJ.

Law Office of Epstein & Rayhill, Latham (Jeffrey T.
Culkin of counsel), for appellant.
Kouray & Kouray, Schenectady (Steven X. Kouray of
counsel), for respondents.

MEMORANDUM AND ORDER

Garry, J.

Appeal from an order of the Supreme Court (Aulisi, J.), entered August 11, 2009 in Schenectady County, which, among other things, granted plaintiffs' motion for summary judgment.

In November 2006, plaintiff David Massa (hereinafter plaintiff), a college student, threw or pushed a 55-gallon oil drum out of the second story window of a fraternity house. The drum struck and injured another student, who commenced a personal injury action alleging that plaintiff was negligent. Plaintiff was also charged with assault in the second degree and pleaded guilty to disorderly conduct.

Plaintiff was a covered insured under a homeowner's insurance policy issued by defendant to his parents, plaintiffs Edmond Massa and Tina Massa. Defendant denied coverage in the negligence action based on policy exclusions for criminal and intentional acts. Plaintiffs commenced this action seeking, among other things, a judgment declaring that defendant is obliged to defend and indemnify them. They moved for summary judgment, and defendant cross-moved for summary judgment. Supreme Court determined that neither exclusion was applicable, granted plaintiffs' motion, and denied defendant's cross motion. Defendant appeals.

The underlying personal injury complaint alleges that plaintiff negligently threw the oil drum through the window "without first ascertaining that it was reasonably safe to do so." Plaintiff testified that he recalls becoming very intoxicated at the fraternity house on the night of the incident, but does not recall the events leading to the personal injury action. According to a statement given to police by a fraternity member, plaintiff was "visibly intoxicated" and was asked to leave. He departed, but later apparently returned to the premises and entered the fraternity house, where students who were outside saw him standing at an open upstairs window. Plaintiff threw a piece of debris toward the students. He "reacted with confusion and hostility" when they told him to move away from the window, but he complied. The drum fell approximately 30 seconds after he disappeared from the window. An eyewitness who was upstairs in the fraternity house stated to police that plaintiff was "really drunk" and said she saw him at the window, apparently about to "dump" what she described as a garbage can outside. She took it away and told him to stop, and plaintiff pushed her, causing her to fall. He then "put the oil drum through the window" and let go; it lodged briefly in the window before dropping to the ground.

The policy's intentional act exclusion bars coverage for bodily injury "caused intentionally by or at the direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct." Coverage may be barred under such an exclusion only if "there is no possible legal or factual basis to support a finding that, from the point of view of the insured, the bodily injuries inflicted were unexpected, unintended and unforeseen" (Clayburn v Nationwide Mut. Fire Ins. Co., 58 AD3d 990, 991 [2009]; see Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [2000]). The evidence does not conclusively establish that anyone was directly below the window when plaintiff looked outside, that he saw anyone below, or that he knew there was anyone there when he pushed or threw the drum outside. Therefore, there is a possible basis for a factual determination that, from plaintiff's point of view, it was unexpected, unintended, and unforeseen that the drum would strike someone, despite the fact that other interpretations are also possible.

Defendant contends that plaintiff's actions were nonetheless intentional within the meaning of the exclusion because the resulting harm "'was inherent in the nature and force'" of the wrongful act (Clayburn v Nationwide Mut. Fire Ins. Co., 58 AD3d at 991, quoting Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 770 [1998]). However, as no injuries would have occurred if no one had been below the window, the question as to whether plaintiff knew anyone was there prevents a determination, as a matter of law, that "'to do the act [was] necessarily to do the harm which [was] its consequence'" (New York Cent. Mut. Fire Ins. Co. v Wood, 36 AD3d 1048, 1050 [2007], quoting Progressive N. Ins. Co. v Rafferty, 17 AD3d 888, 889 [2005]). Thus, Supreme Court properly determined that the intentional act exclusion was inapplicable (see New York Cent. Mut. Fire Ins. Co. v Wood, 36 AD3d at 1050; compare Carmean v Royal Indemnity Co., 302 AD2d 670, 671-672 [2003]; Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d at 770-771).

Under the criminal act exclusion, defendant's policy does not cover injury "caused by or resulting from an act or omission which is criminal in nature and committed by an insured." Other than indicating that conduct may fall within this exclusion "regardless of whether the insured is actually charged with, or convicted of a crime," the policy offers no definition or other guidance in determining what conduct is "criminal in nature." Any ambiguity in the language must be resolved against defendant (see Villanueva v Preferred Mut. Ins. Co., 48 AD3d 1015, 1016 [2008]), and "it is [defendant's] burden to prove that the construction it advances is not only reasonable, but also that it is the only fair one" (Pepper v Allstate Ins. Co., 20 AD3d 633, 635 [2005] [internal quotation marks, brackets and citation omitted]).

Disorderly conduct is a violation rather than a felony or misdemeanor (see Penal Law § 240.20)[FN1] and, thus, is not a "crime" as defined in the Penal Law (see Penal Law § 10.00 [3], [6]; De Paulo v City of Albany, 49 NY2d 994, 995-996 [1980]). However, conduct may be found to be "criminal in nature" without regard to whether it led to actual criminal prosecution or conviction (see New York Cent. Mut. Fire Ins. Co. v Nationwide Mut. Ins. Co., 307 AD2d 449, 451 [2003]; see also Kehoe v Nationwide Mut. Fire Ins. Co., 299 AD2d 318, 319 [2002]). Defendant contends that plaintiff's conduct was "criminal in nature" even if his intoxication prevented him from forming an intention to cause injury and therefore from committing intentional assault (see Penal Law § 120.00 [2]), because proof of voluntary intoxication does not negate recklessness (see Penal Law § 15.05 [3]; People v Johnson, 277 AD2d 702, 704 [2000], lv denied 96 NY2d 831 [2001]). In defendant's view, plaintiff's conduct was criminally reckless.

"A person acts recklessly . . . when that person is aware of and consciously disregards a substantial and unjustifiable risk of a result, where the risk is of such a nature and degree that to disregard it constitutes a gross deviation from the standard of conduct of a reasonable person" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 46 [1991]; see Penal Law § 15.05 [3]). As previously discussed, there is a triable issue of fact as to whether plaintiff was aware that someone was below the window. Moreover, neither of the two witnesses who described the accident to police has been deposed or cross-examined. Their statements in the police report do not decisively demonstrate that plaintiff necessarily intended to throw the can through the window. Thus, there are triable issues of fact deserving of further inquiry as to whether plaintiff consciously disregarded a substantial risk that his conduct would cause injury. Construing the exclusion narrowly against the insurer (see Pepper v Allstate Ins. Co., 20 AD3d at 635), we find that these factual issues prevent a determination as to whether plaintiff's conduct was "criminal in nature" as a matter of law.

Defendant did not demonstrate "that there is no possible factual or legal basis on which [it] may eventually be held liable under its policy" (First State Ins. Co. v J & S United Amusement Corp., 67 NY2d 1044, 1046 [1986]; accord Allstate Ins. Co. v Kemp, 144 AD2d 853, 854 [1988]). Thus, defendant was not entitled to a declaratory judgment in its favor as to the applicability of the criminal act exclusion, and Supreme Court properly denied its cross motion for summary judgment. Further, as defendant did not demonstrate that the allegations of negligence in the underlying complaint "cast [the] pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation" (Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d at 770 [internal quotation marks and citations omitted]), summary judgment was properly granted to plaintiffs as to defendant's broad duty to provide a defense in the underlying action. However, summary determination as to defendant's narrower duty to indemnify was inappropriate, as we find triable issues of fact as to whether plaintiff's conduct was criminal in nature (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. That determination must await trial on a full record in the declaratory judgment action (compare Allstate v Zuk, 78 NY2d at 47).

Peters, J.P., Rose, Stein and McCarthy, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiffs' motion for summary judgment declaring that defendant is obligated to indemnify them in the underlying tort action; motion denied to that extent; and, as so modified, affirmed.

Footnotes

Footnote 1:The record does not reveal to which of the seven subdivisions of Penal Law § 240.20 plaintiff pleaded guilty.

IN RE LESTER HOMAN

v

COUNTY OF CATTARAUGUS DEPARTMENT OF SOCIAL SERVICES.

Appeal from an order of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered September 22, 2009. The order, among other things, denied petitioner's motion seeking a determination that respondent does not have a valid Medicaid lien against settlement proceeds received by petitioner.

WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (F. DAVID RUSIN OF COUNSEL), FOR PETITIONER-APPELLANT.
STEPHEN D. MILLER, OLEAN, FOR RESPONDENT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied petitioner's motion seeking a determination that respondent, County of Cattaraugus Department of Social Services (DSS), does not have a valid Medicaid lien against the proceeds received by petitioner as supplemental uninsured/underinsured motorist (SUM) coverage under his mother's insurance policy (Homan v County of Cattaraugus Dept. of Social Servs., 24 Misc 3d 1243[A], 2009 NY Slip Op 51854[U]). It is undisputed that petitioner sustained severe and permanent injuries while operating his mother's motor vehicle when a vehicle operated by an uninsured driver struck the vehicle operated by petitioner. It also is undisputed that the only recovery received by petitioner to date has been from his mother's SUM coverage, for the $25,000 policy limit. Petitioner contends that, because the settlement with his mother's insurer was for pain and suffering only, DSS is not entitled to assert a lien for medical expenses against the proceeds. In addition, he contends that, pursuant to the decision of the Supreme Court in Arkansas Dept. of Health & Human Servs. v Ahlborn (547 US 268), DSS has only a right of subrogation against the tortfeasor, not a right to a lien against the settlement proceeds. We reject both of petitioner's contentions.

Even before the Supreme Court issued its decision in Ahlborn, it was settled in New York that "a Medicaid lien may not be effectively nullified by the mere expedient of the plaintiff['s] attorney announcing that the settlement relates to pain and suffering only" (Carpenter v Saltone Corp., 276 AD2d 202, 211; see Simmons v Aiken, 100 AD2d 769, 769-770). The Supreme Court subsequently held in Ahlborn that federal law prohibits a Medicaid lien from being paid in its entirety from settlement proceeds before any other payments are made in the event that only a portion thereof may fairly be allocated to medical expenses. We conclude that the decision in Ahlborn does not permit a plaintiff to avoid a Medicaid lien altogether by settling with the tortfeasor for pain and suffering only. Also contrary to petitioner's contention, Ahlborn does not limit DSS to a right of subrogation rather than a lien inasmuch as, in Ahlborn, the DSS lien was in fact enforced by the Court, albeit not to the extent sought by DSS. We thus conclude that the court herein, pursuant to Ahlborn, properly concluded that a hearing is required to determine the total value of plaintiff's loss, from which the proportionate share of DSS of the settlement proceeds may then be calculated (see Harris v City of New York, 16 Misc 3d 674).

Finally, petitioner's remaining contention is raised for the first time on appeal and thus is not properly before us (see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985).

 MURAD v. RUSSO

Appeal and cross appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered July 2, 2009. The order, among other things, denied those parts of the motion of plaintiff in action No. 1 and the cross motion of plaintiff in action No. 2 seeking declarations concerning their entitlement to the proceeds of an insurance policy covering the defendant in action Nos. 1 and 2.

LINDA SULLIVAN FATATA, CORPORATION COUNSEL, UTICA (ARMOND J. FESTINE OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.
BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA (STEPHANIE A. PALMER OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In these consolidated actions, Supreme Court, inter alia, denied those parts of the motion of Jacquelyn E. Murad, the plaintiff in action No. 1, and the cross motion of City of Utica, the plaintiff in action No. 2, seeking declarations concerning their entitlement to the proceeds of an automobile insurance policy covering the defendant in action Nos. 1 and 2. Murad was injured during the course of her duty as an officer of the Utica Police Department when the vehicle operated by defendant collided with Murad's vehicle. We affirm. "It is, of course, beyond our province to perform useless or futile acts,' and we are thus to refrain from resolv[ing] disputed legal questions unless [to do so] would have an immediate practical effect on the conduct of the parties' " (Burnett v Columbus McKinnon Corp., 69 AD3d 58, 64, quoting New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530). Here, although the record establishes that defendant's insurer was amenable to settling the actions for the limits of the policy in question, it cannot be said with certainty that such settlements would occur. Consequently, the issue is not ripe for our review, and it would be "merely advisory" to grant the declaratory relief sought by plaintiffs (New York Pub. Interest Research Group, 42 NY2d at 531; see Burnett, 69 AD3d at 64).
Entered: June 11, 2010

Green v William Penn Life Insurance Company of New York

Thomas Torto, New York, for appellant.
Bleakley Platt & Schmidt, LLP, White Plains (Robert D.
Meade of counsel), for respondent.

Judgment, Supreme Court, New York County (Harold Beeler, J.), entered June 29, 2006, reversed, on the facts, without costs, and the matter remanded for a new trial.

Saxe and Acosta, JJ. concur in a separate memorandum by Saxe, J.; McGuire, J. concurs in a separate memorandum; and Andrias, J.P. and Nardelli, J. dissent in a memorandum by Andrias, J.P. as follows:
SAXE, J. (concurring)

On this appeal we are required to consider the evidence in a case where a man died under circumstances that led the trial court to rule that he committed suicide. On our first review of that determination, we held, by a vote of 3-2, that as a matter of law, the common law presumption against suicide had not been sufficiently rebutted (48 AD3d 37 [2007]). An appeal to the Court of Appeals followed. The Court of Appeals disagreed with our reliance on the presumption to determine the appeal as a matter of law, observing that "the evidence was strong enough to permit a finding of suicide, though not to require it," and remitted the matter to this Court for exercise of our weight of the evidence review power (12 NY3d 342, 347 [2009]). Following the Court of Appeals' instructions, and conducting a weight of the evidence review, a plurality of this Court now concludes that while there was evidence that permitted a finding of suicide (see 12 NY3d at 347 [emphasis added]), it was not strong enough to outweigh the evidence tending to point to death by means other than suicide, and that therefore a new trial is needed. A third justice concurs with the conclusion that a new trial is necessary, but declines to reach the weight of the evidence issue, concluding instead that the erroneous mid-trial ruling
allowing defendant to present expert testimony alone requires a new trial.

Before addressing the evidence, we must first determine the correct standard of review to be applied. While there are cases stating the standard in a variety of ways, not all of which are reconcilable, the correct standard is, in fact, well established. In Cohen v Hallmark Cards (45 NY2d 493 [1978]), the Court of Appeals explained the distinction between appellate review of the weight of the evidence and appellate review of the sufficiency of the evidence; in doing so, it instructed that as to a weight of the evidence review of a nonjury determination, the Appellate Division has the power to make new findings of fact:

"In reviewing a judgment of Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case. The result is, of course, different in cases not involving the right to a jury trial, since then the Appellate Division does have the power to make new findings of fact. In either situation, the determination that a factual finding was against the preponderance of the evidence is itself a factual determination based on the reviewing court's conclusion that the original trier of fact has incorrectly assessed the evidence" (id. at 498 [citations omitted] [emphasis added]).

It has therefore become well settled that in reviewing a case tried without a jury, the Appellate Division's "authority is as broad as that of the trial court" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; see also 1 Newman, New York Appellate Practice, § 4.03[5], at 4-26). The Appellate Division "may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" (Northern Westchester Professional Park, supra [internal quotation marks and citation omitted]).

Yet, defendant asserts that our review power is more limited here. It suggests that appellate review of nonjury determinations may be either de novo review, which it says is applicable where essentially legal issues were presented at trial, or weight of the evidence review, which it claims is appropriate where the determination under review was based on credibility, and which it characterizes as a more limited type of appellate review (citing Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562 [2003]). It reasons that when the Court of Appeals remitted this matter for a "weight of the evidence" review, the Court intended to circumscribe this Court's authority, and preclude a de novo review of the evidence. We reject this reasoning. To the extent some cases characterize weight of the evidence review as "limited" (see e.g. ColiseumTowers), we disagree. The Court of Appeals' remittitur referred to a weight of the evidence review in order to distinguish that type of review from our prior determination, which was made on the law rather than on the facts.

Nor do we accept defendant's suggestion that Thoreson v Penthouse Intl. (80 NY2d 490, 495 [1992]) dictates that our only task here is to decide whether the trial court's determination was based on a fair interpretation of the evidence. The Thoreson decision concerned an award of punitive damages under Executive Law § 297(9), and merely recited, without discussion, its agreement with the use of the "fair interpretation of the evidence" standard there. The questions raised in that case did not involve, and the Court neither discussed nor mentioned, the Appellate Division's well established broad authority to make its own findings of fact, as recognized in Northern Westchester Professional Park Assoc. (60 NY2d at 499).

Moreover, the Thoreson decision specifies that the "fair interpretation" approach applies "especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (80 NY2d at 495 [internal quotation marks and citations omitted] [emphasis added]). Limiting appellate review to the fair interpretation of the evidence approach may be appropriate where the findings rest predominantly on credibility determinations, because the latter are entitled to substantial deference. However, it is not appropriate where the trial court's findings rest largely on inferences drawn from established facts and verifiable assertions. In that case, there is no valid rationale for precluding the appellate court from finding facts, as indicated in Northern Westchester Professional Park Assoc. (60 NY2d at 499).

Here, although plaintiff's credibility was properly called into question by the trial court in some respects, when the entirety of the evidence is considered, it becomes apparent that the question of whether Mr. Green committed suicide is not logically dependent on findings regarding plaintiff's credibility. That is, our analysis does not turn on whether plaintiff was lying or telling the truth. Rather, this fact-finding determination is based predominately on inferences drawn from established facts such as empty pill vials and prescription dates, objectively verifiable assertions regarding the decedent's conduct shortly before his death, and statements by witnesses whose credibility is not questioned. As to those aspects of plaintiff's testimony in which her credibility is arguably relevant to a finding, those assertions that are appropriately discounted or rejected based upon credibility problems do not have a significant impact on the question of whether Mr. Green committed suicide.

To conclude this preliminary discussion of the proper standard of review, we observe that since the Court of Appeals has already asserted that "the evidence [in this case] was strong enough to permit a finding of suicide, though not to require it" (12 NY2d at 347), there would be little point in further assessment if our task were limited to merely deciding whether the trial court's determination was based on a fair interpretation of the evidence, rather than assessing de novo whether the weight of the evidence supports the determination.

In accordance with the foregoing, the standard of review we will apply here is the de novo weighing of the evidence set forth in Northern Westchester Professional Park Assoc., rather than the more limited approach referred to in Thoreson.

Before proceeding to weigh the evidence, we must also clarify defendant's burden of proof. Plaintiff's burden of proof on her claim for the life insurance benefit is satisfied simply by proof of Mr. Green's death, the existence of the life insurance policy, and plaintiff's status as the beneficiary of that policy (Schelberger v Eastern Sav. Bank, 93 AD2d 188, 192-193 [1983], affd 60 NY2d 506 [1983]). The claim that benefits are not payable because Mr. Green committed suicide constitutes an affirmative defense, which must be proved by defendant insurance company. Any affirmative defense — even one with no applicable presumption to overcome — places the burden of proof of that issue on its proponent (57 NY Jur 2d, Evidence and Witnesses § 164). Here, however, there is an additional burden on defendant. To establish the affirmative defense of suicide, an insurer must overcome a presumption that has been called "one of the strongest presumptions in the law" (Schelberger, 93 AD2d at 190). This burden has been said to require the insurer to establish suicide by "clearly establishing such facts as will exclude any reasonable hypothesis of accidental death" (id. at 192, quoting Vance, Insurance, at 571). Stated as the pattern jury instruction directs, the finding of suicide may be made only if the finder of fact is satisfied "that no conclusion other than suicide may reasonably be drawn" (PJI 4:57; PJI 1:63.2). The Court of Appeals, in remanding this matter, approved the use of that instruction, although it also re-phrased the instruction as one that tells jurors that suicide should not be found "unless the evidence shows suicide to be highly probable" (12 NY3d at 347). We therefore conclude that it is our obligation, just as it was the obligation of the trial court acting as factfinder, to apply the presumption against suicide in connection with defendant's burden of proof on its affirmative defense, so as to find against suicide unless "no conclusion other than suicide may reasonably be drawn" (PJI 4:57) or "the evidence shows suicide to be highly probable" (12 NY3d at 347).

With these parameters in mind, we turn to the evidence.

As alluded to earlier in this discussion, we acknowledge, and to an extent agree with, the trial court's view that in some respects plaintiff's trial testimony was not credible. Initially, we note that where the trial court questioned plaintiff's credibility based not on her courtroom demeanor — which this Court cannot observe and therefore could not rely on to question credibility — but on statements she is reported by others to have made shortly after her husband's death, this Court is also capable of independently assessing plaintiff's credibility on that basis. Moreover, we would closely question plaintiff's credibility in any event, given her pecuniary interest in the matter.

The portion of plaintiff's testimony that warrants rejection on credibility grounds is the part in which she protested that her husband had not been depressed at the time of his death. This assertion was directly contradicted by her reported statements to police and to her sister-in-law on the day of Mr. Green's death and the next day, that he had been depressed and that he must have overdosed on his medications. Moreover, the fact of Mr. Green's depression was established by the unassailable testimony of his internist, Dr. Robert Bos, with whom he spoke the day before his death.

However, while plaintiff's unwillingness to acknowledge at trial her husband's emotional difficulties may provide reason for rejecting her assertions on credibility grounds, it does not provide a basis to make affirmative findings of fact against her on the issue on which her adversary has the burden of proof, that is, that Mr. Green committed suicide. It is up to defendant to present evidence compelling that finding.

In an effort to establish that it has made such a showing, defendant characterizes as admissions plaintiff's expressions of fear, at the scene and shortly thereafter, that her husband must have died of a drug overdose. However, plaintiff's expressed fear or suspicion that her husband took an overdose of medication is not an admission of anything. Plaintiff's statements may not logically be relied on either to establish the actual cause of his death or his intent at the time. Her expressions of fear or suspicion could satisfy defendant's burden of proving that the feared possibility was a fact only if it were shown to be based on facts or events known to plaintiff and established at trial, that objectively support the conclusion that suicide, rather than accidental or unintentional death, was highly probable.

Another problem with the trial court's finding that Mr. Green committed suicide is that the court improperly allowed, and then placed excessive reliance on, the testimony of defendant's belatedly offered expert, forensic pathologist Dr. Michael Baden, when it found that

"[t]he presence of suicidal thoughts in an individual is an important factor in determining whether the death of that individual was as a result of a suicide. The fact that an individual had been depressed in the immediate period before death is an important factor in determining whether the death of that individual was the result of suicide; and many suicides can be the results of acute reactive depressions which result from personal financial problems of a few days' duration."

Dr. Baden had asserted that depression and suicidal thoughts are very important factors in making a diagnosis of suicide and that most suicides are not planned but are committed on the basis of opportunity.

Under the specific circumstances presented here, the ruling allowing defendant to present this testimony constituted an abuse of discretion.

CPLR 3101(d)(1) provides that a party shall not be precluded from introducing an expert to testify at trial despite noncompliance with the statute's notice requirement where the party has shown good cause for the belated application. The requirement of showing good cause has been considered satisfied where testimony offered by a witness at trial was entirely new and came as a surprise, such as in Simpson v Bellew, 161 AD2d 693 [1990], lv denied 77 NY2d 808 [1991]), a personal injury action involving a pedestrian hit and killed by a van, in which a police officer called by the defendant testified for the first time at trial that the driver of the van told him that he had hit the pedestrian in the crosswalk, although no such admission had been noted in his police report. The surprise testimony not only was completely new, but it also was the type of information that would rationally be expected to be included in the police report, so the officer's failure to report it before testifying at trial necessitated a new witness on the subject. In contrast, here, notwithstanding the defense's characterizations, Dr. Bos's testimony at trial contained nothing new.

While a trial court has wide discretion to allow a party to introduce expert testimony despite its failure to give the other side proper notice pursuant to CPLR 3101(d) (see e.g. Putchlawski v Diaz, 192 AD2d 444, 445 [1993], lv denied 82 NY2d 654 [1993]), in the absence of prejudice (see St. Hilaire v White, 305 AD2d 209, 210 [2003]), here, the lack of prior notice of Dr. Baden's testimony prejudiced plaintiff by leaving her unable to properly counter that testimony. Plaintiff should have been entitled to rely on the absence of notice of a defense expert to conclude that she need not retain or consult her own expert beyond her husband's treating physician, Dr. Bos.

One reason it is so troubling that plaintiff was prejudiced in this manner is that the situation defense counsel was attempting to solve with his sudden introduction of an expert witness was of his own making. It arose from defense counsel's litigation decision to use Mr. Green's treating internist, Dr. Robert Bos, on his direct case to establish that Mr. Green had been suicidal. Plaintiff did nothing to create the predicament in which the defense found itself. Since the burden was always on defendant to overcome the presumption and prove that Mr. Green committed suicide, and plaintiff had no burden on the issue, defendant cannot possibly point to plaintiff's not calling an expert to justify defendant's initial decision not to call its own expert.

Moreover, the defense's decision to prove through Dr. Bos that Mr. Green had been suicidal relied on a rather broad view of Dr. Bos's deposition testimony. Dr. Bos testified at his deposition that Mr. Green said he had "suicidal thoughts," but he further testified that Mr. Green immediately assured him that he did not want to kill himself, did not have plans to do so, and would never do such a thing.

Contrary to defense counsel's characterization in the context of the mid-trial application to call Dr. Baden as a witness, Dr. Bos's testimony at trial was not inconsistent with his deposition testimony. He testified at trial that Mr. Green "may not have cared about being alive at that point," used words to the effect that he "[did not] feel life [was] worthwhile" and mayhave said he did not "see . . . the point of being alive." Dr. Bos explained that it was based on such statements by Mr. Green that he made the notation "suicidal thoughts" in his records, but he explained how he differentiated between suicidal statements or thoughts and the state of actually being suicidal.

The purported contradictions defense counsel relied on in making the mid-trial application were not substantive contradictions and provided no actual support for the application. Defense counsel cited Dr. Bos's failure to testify at trial that Mr. Green said he did not see the point of living, although he testified to that effect at his deposition. However, Dr. Bos's trial testimony was virtually indistinguishable from his deposition testimony; to the extent he omitted mentioning at trial any particular statement attributed to Mr. Green at deposition, no direct contradiction was made out. Nor did Dr. Bos testify at trial, as defense counsel claimed, that "suicidal thoughts do[] not mean anything." Rather, at both deposition and trial he discussed the statements Mr. Green made to describe how he then felt about his life.

Nor do defense counsel's arguments on the present appeal support the claim that Dr. Bos changed his testimony, thereby making it necessary for the defense to call a new expert witness. The record does not support defendant's contention that Dr. Bos tried to "distance himself" from his earlier testimony characterizing Mr. Green as having suicidal thoughts, based on Mr. Green's statement that he did not see the point of living.

The defense's assertion that "Dr. Bos testified at trial that suicidal thoughts, without a plan to implement them, do not present a serious warning" is a distortion of the trial testimony. When we consider the testimony itself, as well as the manner in which it was elicited, it is clear that it cannot properly support a ruling allowing defense counsel to present a surprise expert witness. What occurred was that on redirect examination of Dr. Bos, defense counsel attempted to press its point that Mr. Green's "suicidal thoughts" reflected that he was a suicide risk, by asking Dr. Bos a question more suited to an expert witness than to a fact witness. Specifically, defense counsel asked, "In somebody who is depressed, and . . . having suicidal thoughts, does that person present the same risk for suicide as a person who is depressed but is not having suicidal thoughts?" Dr. Bos replied that merely questioning the purpose of daily life does not, in itself, mean that a depressed person is going to take his own life. He added that it is "when they express to you a plan, and a concrete plan of really ending it all, then that would establish suicidality."

While defense counsel clearly found this unexpected answer unsatisfactory, his unhappiness with Dr. Bos's responses did not justify the court's allowing him to bring in an expert in mid-trial. Dr. Bos's answer did not contradict his earlier testimony. Rather, counsel asked him at trial a question he had not been asked before, and then did not like the answer. Moreover, since that portion of Dr. Bos's testimony was elicited by defense counsel on a point not raised at deposition, on a subject more suited to an expert witness than to a fact witness, counsel should not have been permitted to rely on the unexpected answer to support his claim that he suddenly needed a new expert. We also reject the suggestion of our dissenting colleague that the belated introduction of Dr. Baden was justified because Dr. Bos had purposely attempted to "weaken the implication that Mr. Green had committed suicide" by his testimony that merely questioning the purpose of life does not mean that a depressed person is going to take his own life. Dr. Bos was simply providing a fuller, more balanced and more nuanced answer to defense counsel's question than the simple response counsel seemed to expect.

Finally, the minor discrepancies in Dr. Bos's testimony as to who first told him over the telephone after Mr. Green's death that Mr. Green had taken pills in a manner suggesting suicide fail to justify any relief. Indeed, while Dr. Bos expressed some uncertainty on this general subject, after his recollection was refreshed, he clarified that it was plaintiff who told him about the empty pill vial and the possibility of suicide.

In view of plaintiff's objection, the trial court should not have allowed defendant to present a new expert at that juncture. It was fundamentally unfair to allow the defense to bring in an expert witness in mid-trial when the sudden need for expert testimony was created by the defense's strategic decision to attempt to establish through Mr. Green's treating physician, a fact witness, a general truth about suicidal people, and that decision backfired.

The prejudice plaintiff experienced as a result of the surprise introduction of an expert in mid-trial was not eliminated by the offer of time for plaintiff to obtain a competing expert. In the midst of trial, attempting that task would entail an unacceptable diversion of counsel's attention; as a practical matter, plaintiff's counsel could not undertake the task of locating a new expert to challenge Dr. Baden's opinions and assertions as part of a rebuttal case. Counsel's decision to decline the illusory offer of time was simply realistic, and should not be interpreted to mean that plaintiff was not prejudiced.

The ruling admitting Dr. Baden's testimony is especially problematic because the trial court relied on it so heavily, particularly with regard to a questionable assertion by the expert that most suicides are not planned and are committed on the basis of opportunity. In fact, contrary to earlier research suggesting that many suicides are the result of impulsive decisions, recent research establishes that most suicides are not attempted impulsively, but involve a plan (see Smith et al., Revisiting Impulsivity in Suicide: Implications for Civil Liability of Third Parties, 26 Behav Sci & L 779 [2008]). Nor was any explanation offered for permitting a forensic pathologist to testify as an expert on the psychology or state of mind of an individual who commits suicide. The resulting finding of suicide is particularly troubling, in the absence of evidence here tending to show any suicide plan on Mr. Green's part, insofar as it was so heavily based on this surprise expert testimony that plaintiff was unable to effectively controvert.

Dr. Baden's testimony must therefore be excluded in its entirety from the evidence to be considered in determining whether the verdict is supported by the weight of the evidence. Because that testimony provided by far the strongest evidentiary support for the finding that Mr. Green had committed suicide, and the remaining evidence consists largely of surmise, once this testimony is excluded from consideration, justification for the verdict is substantially undermined.

Even if we found that permitting Dr. Baden to testify did not constitute an abuse of discretion, we would nevertheless find that the trial court placed excessive reliance on his testimony, and in our present independent weighing of the evidence, we would, in any event, find that Dr. Baden's testimony is entitled to little weight.

Another important component of the trial court's finding of suicide was the inference the court drew from the empty pill vials that had contained Ambien and hydrocodone. The court calculated, based on the time it had taken Mr. Green to finish the prescription for 30 Ambien pills that he received on December 8, 2001 and refilled on February 6, 2002, that the amount of medication that would have been in the vial on the day he died was "inconsistent with an accident and only consistent with the fact that it was a deliberate suicidal act." It further relied on the possibility that Mr. Green also took some of the 40 hydrocodone pills that had been prescribed for him in January after hernia surgery.

In our view, however, the conclusion that Mr. Green intentionally took an overdose of these two pills is based upon conjecture and is not sufficiently supported by the record. As to the painkiller hydrocodone, there is no basis for the conclusion that any of it remained in its vial by the date of his death, since it had been prescribed 27 days earlier and, if taken at anything like the prescribed rate of two every four hours, all 40 pills would have been taken well before that date. As to the Ambien, we simply cannot say how many pills remained in the Ambien vial by that date. Mr. Green's earlier use of 30 Ambien pills during a previous 60-day period may be relevant, but cannot be relied upon by itself to establish as a fact his usage during the weeks preceding his death. Importantly, plaintiff said that Mr. Green took the Ambien regularly and that if he woke in the middle of the night, he took another pill or half a pill. She also admitted to having taken approximately five of the Ambien pills herself. This described usage could have left the vial empty or nearly empty on the date in question, without enough Ambien to cause death. But even if we do not credit plaintiff's description of how the Ambien was used, the mere fact that Mr. Green had been given 30 Ambien pills two weeks before his death creates, at best, a mere possibility that he had enough pills to overdose on them, not a circumstance that establishes a deliberate suicidal act.

Parenthetically, it seems perverse, to say the least, that a court would give greater credence to the contention that a drug addict who overdosed did so accidentally than to the suggestion that a non-addict may have overdosed accidentally, as the trial court seemed to do in reliance on Schelberger v Eastern Sav. Bank (93 AD2d 188 [1983], affd 60 NY2d 506 [1983], supra).

Finally, the trial court acted improperly to the extent it determined that plaintiff was incredible based on the perceived inconsistency between her refusal to permit a toxicological exam or an autopsy of Mr. Green's body on religious grounds and her arranging for Mr. Green's remains to be cremated in accordance with his stated wishes, which the court asserted was in violation of those same religious tenets. It is presumptuous to term these two decisions inconsistent in support of a determination that plaintiff is not credible. Jews vary widely in their observance of Jewish law; while some attempt to strictly follow all 613 mitzvot in the Torah, others abide by far fewer. Each Jew makes an independent choice as to which of the mitzvot he or she will live by. There is nothing suspect in a Jewish person's unwillingness to abide by particular tenets of Jewish law, and the decisions that person makes do not permit others to call into question that person's character, sincerity or credibility. It is improper to find a Jewish person unworthy of belief simply because the person abides by some aspect of Jewish law but not another. This is what the trial judge did, and this is what Justice Andrias does as well. And, when the credibility determination based on the so-called inconsistency is examined in the sunlight and seen for what it is, a substantial chunk of the trial court's findings falls away.

Moreover, the two decisions are not necessarily logically inconsistent. A Jew may express, while alive, a wish for his body to be cremated, without expressing any wish or preference concerning autopsies or toxicological exams. In such circumstances, after that individual's death, the surviving relatives may feel bound by his expressed wish to be cremated, but, in the absence of any other direction about how his body should be treated, may feel authorized to make any remaining decisions based on their own views and observances.

The purported inconsistency therefore ought not serve as a basis for any sort of negative inference.

Nor is it appropriate to make a finding of suicide based on the conclusion that plaintiff sought to avoid the post-mortem testing because she feared that an overdose would be discovered. The trial court reasoned that plaintiff did not permit the procedures because she "didn't really want to find out" or was afraid of finding out that her husband did, in fact, commit suicide. However, this reasoning employs the same fallacy as defendant's reliance on plaintiff's statements of fear that her husband had died of an overdose of his medications. Plaintiff's fear that her husband had committed suicide, and her purported desire to avoid having that fear confirmed, does not justify the inference that he committed suicide. It establishes neither the fact of an overdose nor that any such overdose was intentional rather than accidental.

We also reject defendant's argument that plaintiff's refusal to consent to an autopsy or toxicological exam could not have been motivated by religious tenets, because if she had wanted to respect the family's wishes, she would have consulted Mr. Green's adult son or his sister, rather than his cousin. Nothing in the testimony reflects that Mr. Green was closer with his adult son or his sister than he was with his cousin, while there is evidence that Mr. Green and his cousin were close.

In addition, I find it objectionable that my colleague seems to implicitly draw a negative inference from plaintiff's failure to change her mind and grant permission for an autopsy and toxicology after the Deputy Medical Examiner advised her that it might be hard to collect on a life insurance claim in the absence of test results as to the cause of death. There is no reason why plaintiff should have reconsidered her decision based on the suggestion or advice of an M.E. In this context, my colleague also seems to imply that there was something untoward about the input of Mr. Green's cousin, whom he refers to as "attorney Wolff," in plaintiff's decision to refuse an autopsy and toxicology. It seems as though the term "attorney" is intended to raise the spectre of connivance and obfuscation. Any such implication is without any basis, however; the only evidence on the point shows Mr. Green to have been close to Mr. Wolff, which makes plaintiff's consultation with him nothing but appropriate. Besides rejecting many of the underpinnings of the trial court's finding of suicide, we observe that, notwithstanding the doubt cast on some of plaintiff's testimony, there is no reason to reject, and much evidentiary support for, plaintiff's testimony recounting her husband's conduct on the morning of February 20, 2002, the day of his death. Indeed, the trial court accepted as fact plaintiff's assertions that Mr. Green told her that he would be going to the gym that morning and that he had to make telephone calls, including a work-related conference call, that afternoon. Those assertions are confirmed by the fact, also found by the trial court, that when she found him on the bed that evening, he was dressed in gym clothes — jeans, t-shirt and sweatshirt, with his sneakers on the floor next to the bed. Additionally, Mr. Green's cousin, Richard Wolff, who was representing Mr. Green in litigation with his former attorney, testified that he spoke with Mr. Green that morning, and that they scheduled a meeting for the following week. According to Mr. Wolff, Mr. Green was upbeat, positive and excited about the consulting business he had begun.

Furthermore, the testimony of Dr. Bos reflects that while Mr. Green was experiencing emotional difficulties, he was not overcome by them. Dr. Bos, upon hearing Mr. Green acknowledge that he was experiencing depression, anxiety and insomnia, directly inquired as to whether Mr. Green felt suicidal, and Mr. Green replied without qualification that "he would never do such a thing, he was not suicidal, he was just down." We also observe that by going to the trouble of following up on his internist's referral to a psychiatrist, with whom he left a voicemail message, Mr. Green demonstrated that he recognized, but refused to succumb to, his current state of depression.

The inference that Mr. Green's death was unintended is further supported by additional facts as found by the trial court, including Mr. Green's actions shortly before his death, such as contacting a psychiatrist, and the items found surrounding him at the time of his death, including a copy of the New York Times, his Palm Pilot and his portfolio. All these items, conversations and appointments point to a man engaged in life, not one determined to depart it.

As plaintiff reasonably suggested at trial, there are a variety of possible reasonable explanations for her husband's death: It might have been caused by any number of sudden events such as a heart attack, an aneurysm, or an adverse reaction to medication. And if it was an overdose, it could just as easily have been accidental rather than intentional.

Weighing anew the entirety of the evidence, we find that the evidence tending to permit an inference of suicide is not sufficiently substantial to outweigh the strong presumption against suicide. We find suicide to be merely one possible cause of Mr. Green's death but far from the only reasonable conclusion to reach. The presumption against suicide not being overcome, the weight of the evidence does not support the trial court's finding, and a new trial is appropriate (Cohen v Hallmark Cards, 45 NY2d 493, 498-500 [1978], supra).

We recognize, of course, that only two members of this bench explicitly rule that the reversal we order should be based on the weight of the evidence; the concurring justice, declining to address the weight of the evidence, bases his determination that reversal is necessary on the improper introduction of an expert witness in mid-trial. However, it should not escape notice that the concurring justice has implicitly agreed with that portion of our plurality opinion which concludes that two important components of defendant's case must be excluded when this court weighs the evidence. First, the conclusion that it was error to permit Dr. Baden's testimony logically requires Dr. Baden's testimony to be removed from the balance sheet. Second, by agreeing that plaintiff's expressions of her fears or beliefs with regard to how her husband died do not constitute affirmative proof of how he died, our colleague's opinion precludes reliance on that testimony to support defendant's claim of suicide. I submit that, even ignoring the other errors, simply removing those two components of defendant's evidence from the balance sheet, particularly considering the centrality of Dr. Baden's testimony, supports our factual finding that what remains is a puny quantum of evidence insufficient to overcome the ancient common-law presumption against suicide.

Accordingly, the judgment of the Supreme Court, New York County (Harold Beeler, J.), entered June 29, 2006, dismissing the complaint after a nonjury trial, reversed, on the facts, without costs, and the matter remanded for a new trial.
McGUIRE, J. (concurring)

For the reasons stated by Justice Saxe, I agree that we should direct a new trial because Supreme Court erred in granting defendant's mid-trial application to have Dr. Baden testify as an expert witness. In my view, the court abused its discretion in granting the application. In any event, I would substitute our discretion for that of Supreme Court and hold that Dr. Baden should not have been permitted to testify (see Brady v Ottoway Newspapers, 63 NY2d 1031 [1984]). As a new trial is necessary for this reason alone, there is no need to reach the issue of whether the verdict is against the weight of the evidence. But because there will be a new trial, I add that I also agree with Justice Saxe to the extent he concludes that the evidence concerning expressions by plaintiff of a fear or belief that her husband committed suicide are not affirmative evidence that he did commit suicide and that Supreme Court gave undue weight to that evidence.

I disagree with Justice Saxe's view that I have "implicitly agreed with" him in two particular respects. My conclusion that Dr. Baden should not have been permitted to testify does not "logically require[] Dr. Baden's testimony to be removed from the [weight-of-the-evidence] balance sheet." First, evidence that should not have been admitted at trial is nonetheless evidence that was admitted at trial. Justice Saxe cites no authority for the proposition that when the weight of the evidence is assessed we must disregard evidence that was considered by the trier of fact on the ground that it should not have been admitted. In a criminal case, I think it plain that, for example, if we were to determine that an inculpatory statement of the defendant admitted at trial should have been suppressed, we would not appraise either the sufficiency or the weight of the evidence as if the statement had not been admitted. Nor can we assume there are no circumstances under which Dr. Baden (or another expert) might testify at the new trial. Second, the evidence relating to plaintiff's expressions of her fears or beliefs with regard to how her husband died may be admitted for impeachment purposes even though they are not substantive proof of how he died (see generally Barnes v City of New York, 44 AD3d 39, 47 [2007] [Sullivan, J.], lv denied 10 NY3d 711 [2008]). To that extent, my opinion does not "preclude reliance on that [evidence] to support defendant's claim of suicide."
ANDRIAS, J.P. (dissenting)

In this action by the widow of Alan Green, deceased, to recover the proceeds of his life insurance policy, the complaint was dismissed, after a nonjury trial, based on a finding that
there was no reasonable explanation for Mr. Green's death other than suicide. On appeal, we reversed and directed, by a vote of 3-2, the entry of judgment for plaintiff on the ground that "the evidence failed as a matter of law to overcome the presumption against suicide" because "there are other reasonable conclusions that may be drawn [therefrom], aside from suicide" (48 AD3d 37, 44, 40 [2007]).

The Court of Appeals, stating that the presumption against suicide "is a guide for the factfinder, not a rule that compels a result," and that the jury instruction approved in Schelberger v Eastern Sav. Bank (60 NY2d 506 [1983]) "should not be taken to mean that, where more than one conclusion is reasonably possible, suicide is excluded as a matter of law," reversed our determination "because there was evidence legally sufficient to support Supreme Court's decision [that Mr. Green committed suicide]" (12 NY3d 342, 345, 347 [2009]). The matter was then remitted to this Court "for consideration of the facts and issues raised but not determined on the appeal to [this] Court."

The plurality, employing a de novo review, would again reverse the judgment in defendant's favor and remand for a new trial on the grounds that the finding that defendant committed suicide is against the weight of the evidence and that the trial court improvidently allowed Dr. Michael Baden, a forensic pathologist, to testify as a defense expert. The concurrence agrees that Dr. Baden's testimony should not have been admitted and would reach no other issue. Because I believe that allowing Dr. Baden to testify was not an improvident exercise of discretion and that the trial court's finding of suicide, based largely on its credibility determinations, is not against the weight of the evidence, a fair interpretation of which, when viewed as a whole, shows Mr. Green's suicide to be highly probable, I would affirm the judgment dismissing the complaint.

On December 3, 2001, defendant issued a $500,000 policy insuring the life of Mr. Green, age 54. On February 20, 2002, plaintiff, Mr. Green's wife, returned from work to find Mr. Green lying dead on their bed. When she requested payment as the policy's primary beneficiary, defendant invoked a policy clause that provided that if Mr. Green died as a result of suicide within two years of the date of issue, the death benefit would be limited to the return of the premiums. This action ensued and a bench trial was held in 2005.

The record reflects that Mr. Green resigned his employment in August 2001 and formed a venture to provide information technology consulting services. A restrictive covenant, the enforceability of which he was litigating, prevented Mr. Green from soliciting his former employer's customers for two years, and he did not earn any income from the new venture or from any other employment from the date of his resignation to the date of his death. In September 2001, Mr. Green was unable to pay the initial $318.50 premium due with the application for his new life insurance policy, so plaintiff paid it. Mr. Green also borrowed $30,000 from plaintiff to meet his child support obligations from an earlier marriage.

The day before he died, Mr. Green saw Dr. Bos, who was treating him for pain related to a January 2002 hernia surgery. Mr. Green, a non-smoker and regular exerciser who took good care of his health, did not complain of pain related to the surgery and was found to be in excellent health during that examination and in those performed in the months before he died.

Mr. Green told Dr. Bos that he was depressed, out of work, feeling under lots of pressure and suffering from insomnia. He also said words to the effect that he didn't see "the point of being alive," which Dr. Bos interpreted as Mr. Green's having suicidal thoughts. However, Mr. Green said he had no suicidal plans and Dr. Bos's notes indicate that Mr. Green had "suicidal thoughts" but was "[n]ot suicidal." Dr. Bos found that Mr. Green had "reactive depression" and referred him to a psychiatrist. Mr. Green called the psychiatrist that day and left a message for the psychiatrist to return the call.

Richard Wolff, Mr. Green's cousin, represented Mr. Green in the employment litigation. On the morning of his death, Mr. Green told attorney Wolff that he "hurt[] like hell" due to his hernia surgery, and they scheduled a meeting for the following week. According to Wolff, Mr. Green was upbeat, positive and excited about the consulting business he had begun and his life in general. However, after he resigned from his job, Mr. Green had told Wolff that he was under financial pressures in connection with his child support obligations.

On the morning of his death, Mr. Green told plaintiff that he was going to the gym to swim. When plaintiff returned home that evening, she found Mr. Green lying on the made bed wearing jeans, a T-shirt and a sweatshirt. An empty glass was on the nightstand beside him, and the New York Times, work papers and a Palm Pilot were on the bed next to him. When plaintiff could not awaken Mr. Green, she called 911 and EMS personnel responded. Plaintiff's mother and sister-in-law and Wolff also came to the apartment. EMS personnel pronounced Mr. Green dead at the scene. No suicide note was found. Mr. Green had no history of mental illness or known previous suicide attempts.

On the night of Mr. Green's death, plaintiff told a police officer that Mr. Green had been "depressed[,] and overdosed on pain medication." She also told a representative of the Office of the Chief Medical Examiner that Mr. Green had been depressed and unemployed. Plaintiff, after consulting with attorney Wolff, refused to permit an autopsy or toxicological exam to be conducted by the Medical Examiner's office, claiming it violated Jewish religious law and the family's wishes. Plaintiff and Wolff adhered to this decision despite being told by a Deputy Medical Examiner that in the absence of proof of the cause of death, plaintiff might have difficulty with any later insurance claim. Although cremation is prohibited by Jewish law, plaintiff allowed Mr. Green to be cremated. According to plaintiff, this was because Mr. Green had requested before his death that he be cremated and his ashes scattered over Yankee Stadium.

On December 8, 2001, Mr. Green had received a prescription for 30 Ambien pills, which he refilled on February 6, 2002, two weeks before his death. In January 2002, Mr. Green had filled a prescription for 40 hydrocodone pills for pain following his hernia surgery; that prescription was not refilled. The empty vials for the Ambien refill and hydrocodone were found by the Medical Examiner's office at the scene. The Medical Examiner's office also found a vial containing 61 Vicodin pills and an empty vial from a prescription for Percocet previously issued to plaintiff.

On the evening of Mr. Green's death, plaintiff spoke to Dr. Bos and indicated that "pills were missing," which suggested to Dr. Bos that Mr. Green may have committed suicide by taking the pills. Plaintiff told her sister-in-law the next day that pills were involved in Mr. Green's death and that he had been depressed as a result of financial problems and had recently cancelled Valentine's Day plans due to depression. Plaintiff implored her sister-in-law not to tell one of Mr. Green's friends, a dentist, anything about the pills. Plaintiff testified at trial, inconsistently, that she and Mr. Green might have taken all the pills in normal doses over a period of weeks preceding his death.

The death certificate lists the cause of death as "undetermined." Plaintiff testified that she did not know what caused Mr. Green's death, but speculated that it might have been a heart attack, an aneurysm or an adverse reaction to medication. On direct examination, Dr. Baden testified that depression and suicidal thoughts are very important factors in evaluating whether a death is suicidal or not, and are particularly significant in the absence of an admitted plan to commit suicide, since most suicides are not planned and are committed on the basis of opportunity. He also testified that the ingestion of 10 10-milligram Ambien pills or 20 5-milligram hydrocodone pills would be sufficient to cause death and that Vicodin would still be effective two years after it was prescribed.

On cross-examination, Dr. Baden testified, among other things, that pathologists usually determine whether a person committed suicide through an autopsy or toxicology study, by reviewing the decedent's history and circumstances, and by excluding other competing causes. Although he could not tell how many pills Mr. Green had taken because there was no autopsy, Dr. Baden believed that Mr. Green committed suicide because he was depressed and the medical records showed no other condition that would have caused his death. Dr. Baden explained that medical examiners deal with "acute reactive depressions," i.e. someone "reacts to something going on in his life," which can lead to suicide even "after one or two days of such thoughts." While acknowledging that no suicide note was found in this case, Dr. Baden testified that suicide notes are found in only approximately 25% of cases where suicide is later determined to have been the cause of death.

Consistent with this evidence, the trialcourt found that the facts that an individual had suicidal thoughts and "had been depressed in the immediate period before death" were "important factor[s] in determining whether the death . . . was the result of suicide; . . . [that] many suicides can be the results of acute depressions . . . result[ing] from personal financial problems of a few days['] duration"; that Mr. Green "was suffering from depression at the time of his death and many people commit suicide without a plan as the result of acute reactive depression"; that "[a] toxicological examination . . . would have established whether [Mr. Green's] death was the result of an overdose of medication"; that "[a]n autopsy . . . would have established the cause of death even more definitively than a toxicological examination and would have determined whether [Mr. Green's] death . . . was as a result of an overdose of medication [or] the result of some other medical condition or . . . natural cause"; and that Mr. Green's "medical records [did] not establish that [he] was suffering from any other condition which would have caused him to die of natural causes."

In its conclusions of law, the trial court found that plaintiff made out a prima facie case by producing the life insurance policy and proof of Mr. Green's death, which shifted the burden to defendant to prove that Mr. Green committed suicide. Guided by the pattern jury instruction approved by the Court of Appeals in Schelberger v Eastern Sav. Bank (60 NY2d 506 [1983], supra), the trialcourt concluded that defendant met its burden of overcoming the presumption against suicide because there was no "reasonable explanation in this case [for Mr. Green's death] other than suicide"; it was "pure speculation that his death was as a result of natural causes"; and "[t]he amount of medication taken is inconsistent with an accident and only consistent with the fact that it was a deliberate suicidal act." In so ruling, the court noted that, unlike the decedent in
Schelberger, Mr. Green was not a drug addict who had previously overdosed on drugs.

Initially, I disagree with the plurality about the applicable standard of review. It is true that this Court's authority in reviewing the evidence in a nonjury trial is as broad as that of the trial court and that we may render any judgment we find "warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses'" (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 133-134 [1930]). However, it is well settled that in exercising this power, where the findings of fact rest in whole or in part upon considerations relating to the credibility of the witnesses, we should not disturb the decision of the trial court "unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence" (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992] [internal quotation marks and citations omitted]; Kermanshah Oriental Rugs, Inc. v Latefi, 51 AD3d 562, 563 [2008]; Bragdon v Bragdon, 23 AD3d 203 [2005]).

Here, the trial court, in determining whether the only reasonable inference to be drawn from the evidence was suicide, expressly stated that it was "of course taking into account the critical factor of the credibility of the witnesses" (emphasis added). Still, the plurality contends that de novo review is warranted and that Thoreson's fair interpretation of the evidence approach is inapplicable because "the question of whether Mr. Green committed suicide is not logically dependent on findings regarding plaintiff's credibility" but rather is "based predominately on inferences drawn from established facts such as empty pill vials and prescription dates, objectively verifiable assertions regarding the decedent's conduct shortly before his death, and statements by witnesses whose credibility is not questioned." This position cannot withstand scrutiny.

In an action to recover on a life insurance policy, the presumption against suicide applies for the duration of the case, and the burden of proof of suicide is on the insurer (see Schelberger v Eastern Sav. Bank, 60 NY2d 506 [1983], supra; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178 [1944]). However, even "where more than one conclusion is reasonably possible, suicide is [not] excluded as a matter of law," since "[e]xcept in rare cases, a claim of suicide presents a factual issue, not a legal one" (Green v William Penn Life Ins. Co. Of N.Y., 12 NY3d 342, 347 [2009], supra). Further, as to the burden of proof, the Court of Appeals has explained that

"[t]he [pattern jury] instruction [approved in Schelberger] that a finding of suicide is permissible only when no conclusion other than suicide may reasonably be drawn' is directed at jurors deciding facts, not at judges deciding the law; it is a way of impressing on jurors' minds that the presumption against suicide is a strong one — of telling them they should not find suicide unless the evidence shows suicide to be highly probable. Of course, the same is true of a judge sitting as factfinder in a nonjury trial".[FN1] (id.)

A "highly probable" burden of proof may be satisfied by circumstantial evidence (see Matter of Philip, 50 AD3d 81, 82-83 [2008]; Maier v Allstate Ins. Co., 41 AD3d 1098, 1099-1100 [2007] [the standard of proof in civil arson cases is "clear and convincing," and the insurer may prove the elements of motive and opportunity by circumstantial evidence]). Circumstantial evidence is sufficient if a party's conduct may be reasonably inferred from it (see Gayle v City of New York, 92 NY2d 936 [1998]; Benzaken v Verizon Communications, Inc., 21 AD3d 864, 865 [2005]; see PJI 1:70).

Because there was no autopsy, toxicological report or eyewitness, no direct evidence of the cause of Mr. Green's death exists, and plaintiff's beliefs, as well as those of his family and friends, are relevant in determining whether it is "highly probable" that he committed suicide. As the trial court found, while plaintiff is not a doctor, this is not simply a medical issue, and plaintiff's observations of Mr. Green around the time of his death and her belief that he committed suicide by overdosing on missing pills have probative value.

In weighing the beliefs of plaintiff and other witnesses, the trial court's findings of fact strongly relied on inferences drawn from circumstantial evidence, including evidence of Mr. Green's motive for committing suicide and the availability of a sufficient quantity of pills to cause his death. This, in turn, rested largely on the trial court's credibility determinations, including the finding that "in many ways Mrs. Green, the plaintiff, was not credible."

In particular, the trial court found that plaintiff's testimony that Mr. Green was not really depressed or under real pressure before his death was incredible because it conflicted with her statements to third parties shortly after Mr. Green's death that, among other things, he was depressed and out of work, that pills were missing and that Mr. Green overdosed on prescription medication. This credibility finding goes directly to the material issues of whether Mr. Green had a motive to commit suicide and whether a sufficient number of pills was available to cause his death.

As to the latter, the trial court found that there had been a sufficient number of pills available in the apartment on February 20, 2002 to cause Mr. Green's death. The court reasoned that because Mr. Green's first prescription for 30 Ambien pills "lasted approximately 60 days . . . [t]here is no reason to believe the 30 [Ambien] pills that were prescribed [two weeks before his death] would have lasted any longer or any shorter than" that. While the trial court did not specify an exact number, at the rate of one pill every two days, Mr. Green would have used only seven Ambien pills in the 14 days after the prescription was issued, leaving approximately 23 pills available on the date of his death. Indeed, even if Mr. Green had taken one Ambien pill per day, a dosage twice as much as was reflected in his earlier usage of 30 pills in 60 days, there would have been approximately 16 pills left in the vial on February 20, 2002. Based on the unrebutted expert testimony at trial, either amount supports the inference that there was a sufficient number of Ambien pills available on February 20, 2002 to cause Mr. Green's death. The trial court also noted that an empty vial of hydrocodone and a vial containing 61 Vicodin pills were found.
The plurality deems this finding to be conjecture. As to the hydrocodone, itmaintains that there is no basis to find that any pills would have remained on the date of Mr. Green's death because the hydrocodone was prescribed 27 days earlier and would have been finished if taken at the prescribed rate. As to the Ambien,the plurality relies on plaintiff's testimony as to her and Mr. Green's alleged usage beyond the prescribed dosage, which could have left the refill vial nearly empty. However, the trial court was free to consider that Mr. Green had not taken his previous prescription for Vicodin, a brand of hydrocodone, at the prescribed rate and to reject plaintiff's testimony as to usage of the Ambien refill in a manner that was inconsistent with Mr. Green's usage of the original prescription. Instead, the trial court could rationally rely on plaintiff's repeated statements shortly after Mr. Green's death that pills were missing, which implies that the vials containing the prescription medication were not empty on the morning of his suicide.

Clearly, plaintiff's credibility was relevant to the determination of this issue, given the court's implicit acceptance of her testimony that a number of pills sufficient to cause death was available and taken by Mr. Green and rejection of her testimony indicating that the vials were nearly empty on the date of his death. Indeed, if the plurality's analysis were accepted as logical, the obvious question would be: Why did plaintiff make statements on several occasions shortly after her husband's death that "pills were missing" or that pills were involved in her husband's death?

Another prong of the trialcourt's decision was its finding that plaintiff's refusal to allow an autopsy or toxicological exam of her husband on religious grounds was "not reasonable or credible," given that she allowed him to be cremated. Thecourt noted that "a simple toxicological examination . . . would have shed a huge amount of light concerning the cause of her husband's death," and that plaintiff was trying to "hav[e] it both ways" by "arguing a lack of evidence to overcome the presumption [against suicide] and at the same time engaging in actions [that prevented her from finding out] how her husband, in fact, died." In the court's opinion, plaintiff "didn't really want to find out [the cause of her husband's death] because she was afraid . . . that [he], in fact, did commit suicide."

The plurality contends that plaintiff's decision to bar the autopsy and toxicology report but to allow cremation can be reconciled because she testified that Mr. Green told her he wanted to be cremated. This again turns on credibility, and the trialcourt was free to reject that testimony, which it implicitly did when it found that a conflict existed.

The plurality opines that in any event plaintiff's fears that defendant committed suicide do not establish an intentional overdose. This ignores the fact that "[c]ircumstances insignificant in themselves may acquire probative force as links in the chain of circumstantial proof" (Van Inderstine Co. v Barnet Leather Co., 242 NY 425, 435 [1926]). The Court of Appeals expressly included the conflict between plaintiff's position as to an autopsy and toxicology examination and her position on cremation, which undermines plaintiff's credibility as a whole, in summarizing the "[c]onsiderable evidence [that] supported defendant's contention that Mr. Green committed suicide" (12 NY2d at 345).

In an attempt to avoid the consequence of this conflict and limit the finding that plaintiff was not credible to those specific instances where her testimony was directly contradicted by her own prior inconsistent statements or by the testimony of other witnesses, the plurality dons an ethicist's cap to argue that each Jew makes an independent choice as to which of the 613 mitzvot of the Torah he or she will live by and that it is improper to find a Jewish person unworthy of belief based on the reasoning that he or she abides by some aspect of Jewish law but not another. While the plurality states that this is what the trial court did, and that I do it as well, it is in fact the plurality that turns a blind eye to the record and the role of the finder of fact in making credibility determinations and weighing evidence.

"A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations" (Gass v Gass, 42 AD3d 393, 401 [2007], Sullivan, J., dissenting). New York Pattern Jury Instruction 1:41, "Weighing Testimony," similarly provides:

"In deciding what evidence you will accept you must make your own evaluation of the testimony given by each of the witnesses, and decide how much weight you choose to give to that testimony. The testimony of a witness may not conform to the facts as they occurred because he or she is intentionally lying, because the witness did not accurately see or hear what he or she is testifying about, because the witness' [sic] recollection is faulty, or because the witness has not expressed himself or herself clearly in testifying. There is no magical formula by which you evaluate testimony. You bring with you to this courtroom all of the experience and background of your lives. In your everyday affairs you decide for yourselves the reliability or unreliability of things people tell you. The same tests that you use in your everyday dealings are the tests which you apply in your deliberations. The interest or lack of interest of any witness in the outcome of this case, the bias or prejudice of a witness, if there be any, the age, the appearance, the manner in which the witness gives testimony on the stand, the opportunity that the witness had to observe the facts about which he or she testifies, the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the case, are all items to be considered by you in deciding how much weight, if any, you will give to that witness' testimony."

Applying these standards, the trial court, in weighing the evidence, could consider that there was no proof that Mr. Green himself was observant of Jewish law to any degree whatsoever or that he instructed that, in the event of his death, no autopsy or toxicology examination should be performed because they would violate his adherence to Jewish law.

The plurality contends that in the absence of any direction by Mr. Green on the issue of an autopsy and toxicological exam, his surviving relatives could feel free to make the decision based on their own views and observances. Although one would understand that, on the night of her husband's death, plaintiff was upset and did not want to allow an invasion of Mr. Green's body, the plurality ignoresthe evidence that plaintiff adhered to her decision not to allow an autopsy or toxicological report after consulting with attorney Wolff and being advised by a deputy medical examiner of the potential insurance consequences of not allowing such examinations. The trial court rightfully found that these circumstances reflect "a much more studied[,] deliberate decision," based on potential legal ramifications, rather than on Jewish law, and that a negative inference may be drawn therefrom.

Lastly, the trial court's determination was based in part on its acceptance of the unrebutted expert testimony of Dr. Baden. It is well settled that the credibility of experts and the appropriate weight to be accorded to their testimony are matters to be resolved by the trial court, sitting as the finder of fact (see Sagarin v Sagarin, 251 AD2d 396 [1998]).

The foregoing demonstrates that the trial court's findings of fact as to material issues, including motive and opportunity, rest largely upon considerations relating to credibility. Accordingly, contrary to the plurality's position, this matter must be reviewed under the Thoreson "fair interpretation of the evidence" standard (see e.g. Siebert v Dermigny, 60 AD3d 526 [2009]; Matter of Falk, 47 AD3d 21, 28 [2007], lv denied 10 NY3d 702 [2008]; Watts v State of New York, 25 AD3d 324 [2006]; Saperstein v Lewenberg, 11 AD3d 289 [2004]). Further, because the trial court was in the unique position of observing the witnesses's demeanor, its credibility determinations are owed deference (see Sterling Inv. Servs., Inc. v 1155 NOBO Assoc., LLC, 65 AD3d 1128, 1129-1130 [2009], lv denied 13 NY3d 714 [2009]).

Applying the correct standard of review, I find that the trialcourt's determination that defendant met its burden of overcoming the presumption against suicide is supported by a fair interpretation of the evidence. While there was no evidence that Mr. Green had a plan to commit suicide, there was strong circumstantial evidence indicating that it is "highly probable" that he did so. This evidence includes Mr. Green's statements to Dr. Bos the day before he died that he was depressed, having difficulty sleeping, out of work, and feeling under pressure and that he did not see the point of being alive; Mr. Green's financial and legal problems, including his child support obligations and inability to earn, due to the restrictive covenant he was litigating, which left him unemployed for months; the discovery of Mr. Green lying on his bed with an empty glass on the nightstand beside him and two empty bottles that had contained recently prescribed pain medication in the nightstand drawer; plaintiff's comments to several parties shortly after Mr. Green's death that he was depressed, that pills were missing and that Mr. Green overdosed on medication; Mr. Green's general good health, aside from the hernia operation; and the conflict between plaintiff's refusal to permit an autopsy or a toxicological examination of Mr. Green's body based on Jewish law while ordering the body cremated in violation thereof. Further, there was the unrebutted expert testimony of Dr. Baden that most suicides are not planned and are committed on the basis of opportunity; that suicide is frequently the result of an "acute reactive depression"; that the ingestion of 10 10-milligram Ambien pills or 20 5-milligram hydrocodone pills would be sufficient to cause death; and that suicide notes are found in only approximately 25% of cases where suicide is later determined to have been the cause of death.

To avoid this result, the plurality and the concurrence contend that the trial court improvidently allowed Dr. Baden to testify despite late disclosure. I disagree.

Before trial, in response to an interrogatory, defendant advised plaintiff that it had not retained an expert. After Dr. Bos testified at trial, defendant sent plaintiff a letter stating that it had retained Dr. Baden as an expert "as the result of the surprising efforts of Dr. Bos to change his deposition testimony concerning the admissions made to him by [plaintiff] on February 20, 2002 and what I am told is his inaccurate testimony concerning the significance of suicidal thoughts.'" As to the scope of Dr. Baden's anticipated testimony, the letter stated:

"Dr. Baden has reviewed the claim file and is expected to testify that the presence of suicidal thoughts is a significant factor in determining whether the death of an individual was the result of suicide under the circumstances presented. He is also expected to testify that toxicology could have determined whether Alan Green took a quantity of medication sufficient to cause his death and the quantity of hy[d]rocodone and/or Ambien sufficient to cause death. Dr. Baden is also expected to testify that there is no recognized religious objection to performing a toxicological examination of a Jewish decedent."

Plaintiff moved to preclude Dr. Baden's testimony, and defendant opposed the motion. Upon consideration of the parties' written submissions and oral argument, the trial court found that defendant made a "sufficient showing of good cause" for the delay in retaining Dr. Baden because while Dr. Bos's trial testimony was similar to his deposition testimony in many respects, "in its totality, his testimony at trial significantly weakened the position that Mr. Green committed suicide based upon his interview of Mr. Green, as well as upon his conversations with Mrs. Green and the police." Significantly, the trial court found that there would be no prejudice to plaintiff as a result of allowing Dr. Baden to testify, because the late notice did not affect the way that plaintiff had conducted her case until then, except that if plaintiff had known defendant was going to call an expert, she might have engaged her own expert as well. To remedy any prejudice in that regard, the trial court offered plaintiff the opportunity to retain her own expert and to have the expert testify at trial as to the same issues that Dr. Baden would address, going so far as to state that it would allow plaintiff to expand on those issues upon proper notice. The trial court also offered to direct defendant to specify the exact basis for Dr. Baden's opinion, the facts on which he was relying, and his qualifications. Plaintiff declined both offers.

CPLR 3101(d)(1)(i) provides that

"[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."

The statute further provides that where a party "retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof," it must show "good cause" for the delay. In that regard, "upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just" (id.).

Whether expert disclosure is so late as to warrant preclusion "is left to the sound discretion of the trial court" (McGlauflin v Wadhwa, 265 AD2d 534 [1999]; Tamborino v Burakoff, 224 AD2d 609 [1996]; Lesser v Lacher, 203 AD2d 181 [1994]). A party should not be precluded from proffering expert testimony "merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007] [internal quotations and citations omitted]; St. Hilaire v White, 305 AD2d 209, 210 [2003]; Lanoce v Kempton, 8 AD3d 449, 451 [2004]; Karoon v New York City Tr. Auth., 286 AD2d 648 [2001]). Further, good cause has been found to exist to permit an expert to respond to evidence at trial where the need for the testimony came as a surprise during the trial (see e.g. Benedict v Seasille Equities Corp., 190 AD2d 649, 649-650 [1993]; Simpson v Bellew, 161 AD2d 693, 698 [1990], lv denied 77 NY2d 808 [1991]).

Here, there is no indication either that defendant's failure to disclose Dr. Baden until the middle of trial was intentional or that plaintiff was prejudiced by the late disclosure. Rather, defendant was surprised when Dr. Bos tried to distance himself at trial from the testimony that he gave at his deposition that plaintiff believed that defendant had committed suicide. While Dr. Bos testified at his deposition that when plaintiff called him after Mr. Green's death she mentioned suicide and missing pills and that he did not remember plaintiff telling him that the police or an EMT told her it was suicide, at trial he initially testified that he did not think that plaintiff had mentioned the word suicide, that he did not remember whether plaintiff had said that Mr. Green had taken pills, and that he could not recall whether plaintiff or the police inspector told him that there was an empty pill vial. Dr. Bos also sought to weaken the implication that Mr. Green had committed suicide by testifying that it was not uncommon for people who feel depressed not to see the purpose of life, but that "besides the behavior patterns and the general impression at the time of the consultation," it was "a concrete plan of really ending it all" that would establish that someone was suicidal.

Accordingly, the trial court providently exercised its discretion when it permitted defendant to call Dr. Baden as a witness to respond to Dr. Bos's statements, limited the scope of that testimony, and offered plaintiff the opportunity to call her own expert witness in rebuttal, thereby eliminating any prejudice (see Putchlawski v Diaz, 192 AD2d 444 [1993], lv denied 82 NY2d 654 [1993]). In Putchlawski, under similar circumstances, we stated:

"CPLR 3101(d)(1)(i), which, in medical malpractice actions, requires disclosure of the subject matter on which an expert is expected to testify, but not his or her identity, also gives the court discretion for good cause shown' to make whatever order may be just' in the event of noncompliance. Such discretion was properly exercised here under circumstances showing that the noncompliance was not calculated to put plaintiff at an unfair disadvantage. The court gave plaintiff an opportunity to call a pathologist expert of his own, and placed appropriate restrictions on the testimony of the challenged expert witness" (192 AD2d at 445 [citation omitted]).

The plurality finds that the differences between Dr. Bos's deposition and his trial testimony do not rise to the level of good cause. However, given that there is no showing that defendant's conduct was intentional or that plaintiff was prejudiced, it cannot be said that the trial court improvidently exercised its discretion, and there is no basis for this Court to substitute its discretion for that of the trial court, even if the decision to preclude would equally have been a provident exercise of discretion (see Tamborino, 224 AD2d at 610). As the trial court explained, "[E]ven though, individually, one can argue about the interpretation of his testimony with respect to Mrs. Green and the pills or Mr. Green and whether he said life wasn't worth living or used different words, in it's totality [sic] Dr. [] Bos's testimony weakened the case which the defendant has to show in this case to prove its affirmative defense." This view of the testimony should not be disturbed because there is a material difference between Dr. Bos's deposition testimony that plaintiff, not the police, told him that Mr. Green took pills and committed suicide and his trial testimony that he merely drew the impression from his conversation with plaintiff that Mr. Green may have committed suicide. It was also appropriate to retain Dr. Baden to respond to Dr. Bos's trial testimony that a person who expresses suicidal thoughts does not present the same risk as one who expresses a suicidal plan, and that, while, forensically speaking, a lethal dose of Ambien exists, he had never read about patients overdosing on the drug.

The plurality believes that plaintiff was prejudiced because defense counsel sought to call Dr. Baden to remedy a problem caused by the testimony of Dr. Bos, a witness called by the defense, not by plaintiff, who did nothing to create the predicament in which the defense found itself. However, this is the very situation that occurred in Simpson v Bellew (161 AD23d 693 [1990], supra), which the plurality cites. In Simpson, the appellate court found that the trial court properly exercised its discretion when it allowed defendant to call an expert to rebut the surprise testimony of a police officer, notwithstanding that the police officer was a defense witness.

The plurality also finds that plaintiff was prejudiced because "as a practical matter, plaintiff's counsel could not undertake the task of locating a new expert to challenge Dr. Baden's opinions and assertions as part of a rebuttal case." This speculative contention is belied by the record, which establishes that the trial court's offer, in this nonjury trial, was not illusory and that, in rejecting it, plaintiff made a strategic choice:

"THE COURT: You [plaintiff] rest. It is a non jury case. That's one of the reasons the type of flexibility that was permitted in this case was taken into account. And if you want to call an expert we'll wait for you to do that.

"PLAINTIFF COUNSEL: Thank you for the opportunity, Judge, but it doesn't, its not in my plans—

"THE COURT: All right.

"PLAINTIFF COUNSEL: — or the plaintiff's plans to call an expert (emphasis added)."

Nor is there merit to the plurality's objection to Dr. Baden's testimony on the ground that no explanation was given as to why a forensic pathologist should be permitted to testify on the psychology or state of mind of an individual who commits suicide. Under New York law, "expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence" (Matter of Nicole V., 71 NY2d 112, 120 [1987]). Courts of this State have admitted expert testimony regarding physical and behavioral responses and reactions that are not generally understood (see People v Henson, 33 NY2d 63 [1973]) ["battered child syndrome"]). In Broun v Equitable Life Assur. Soc. of U.S., (69 NY2d 675, 676 [1986]), the Court of Appeals held:

"There must, nevertheless, be a reversal, for the exclusion of Dr. Baden's opinion that decedent's death was a suicide was an abuse of discretion as a matter of law. Although the jury may have been able to evaluate some of the evidence presented, whether the number of pills required to reach the level of toxicity found in decedent's body could have been taken inadvertently or whether the circumstances surrounding the body were consistent with general patterns of behavior exhibited by other suicide victims were not matters within their ken" (emphasis added).

Here too, Dr. Baden testified about general patterns of behavior exhibited by suicide victims. Moreover, the record reflects that Dr. Baden's direct testimony was limited and that plaintiff elicited testimony from him on cross-examination that exceeded the scope of his direct examination, such as the statement that suicide is frequently the result of "acute reactive depression" and that suicide notes are only found in 25% of cases. Further, by rejecting the trial court's offer to demand that defendant amplify its response to her interrogatory, plaintiff waived her argument that defendant's expert notice failed to comply with CPLR 3101(d)(1)(i).

The plurality also contends that Dr. Baden's testimony was given an undue weight. This conclusion does not withstand scrutiny.

It is well settled that the weight to be accorded an expert's testimony, based upon his qualifications, is for the trier of fact to decide (see Borawski v Huang, 34 AD3d 409, 410-11 [2006]; Beizer v Schwartz, 15 AD3d 433, 434 [2005]; Rushford v Facteau, 280 AD2d 787, 789 [2001]). "Moreover, the trial court's assessment of the credibility and weight to be accorded an expert's testimony in a nonjury trial is entitled to deference by a reviewing court" (Levy v Braley, 176 AD2d 1030, 1033 [1991]). Although an expert's testimony may be rejected by the trial court if it is improbable, in conflict with other evidence or otherwise legally unsound, Dr. Baden's testimony was not rebutted and no such challenge is raised on appeal. While the plurality states that, contrary to Dr. Baden's assertion that most suicides are not planned and are committed on the basis of opportunity, recent studies establish that most suicides are not attempted impulsively and do involve a plan, this retrospective critique of Dr. Baden carries no weight. The trial was held in 2005 and the fact that a single 2008 study, which was not in the trial record, disagrees with Dr. Baden's opinion does not establish either that he did not present the trial court with the prevailing scientific view at the time of trial or that his opinion has in fact been discredited by the scientific community.

The plurality also argues that the presumption against suicide was not overcome because suicide was "far from the only reasonable conclusion to reach" since there were a variety of other possible explanations for Mr. Green's death, such as natural causes, an adverse reaction to medication or an accidental overdose. However, the Court of Appeals has explained that the instruction that a finding of suicide is permissible only when "no conclusion other than suicide may reasonably be drawn" is a way of telling jurors that "they should not find suicide unless the evidence shows suicide to be highly probable" (Green, 12 NY3d at 347), a conclusion that,for the reasons set forth above, is supported in this case by a fair interpretation of the evidence.

Further, as the trial court found, "it is pure speculation that [Mr. Green's] death was [] a result of natural causes," particularly given "the availability of pills in the apartment which were sufficient to cause his death." Plaintiff was not aware that Mr. Green had ever experienced an adverse reaction to either hydrocodone or Ambien, and, aside from a recent non-life-threatening hernia operation, Mr. Green was in very good health at the time of his death.

The plurality's hypothesis of an accidental overdose might be plausible if there were some pills left in the prescription vials after Mr. Green's death. Thus, if one, two, three, four, five, or even 10 pills had been left in either vial, a plausible argument could be made that Mr. Green may have accidentally or mistakenly taken too much of either Ambien or hydrocodone or a combination of both. However, there were no pills left in either vial, and it was up to the trial court, as the trier of fact, to draw the appropriate inferences. While there was no direct evidence that Mr. Green committed suicide, as noted above, there was extremely strong circumstantial evidence supporting the court's conclusion that he committed suicide by overdosing onprescription pills.

Finally, as noted by the trial court, while it is true that, in many of the cases, including Schelberger and Wellisch, cited by plaintiff, the jury found that the defendant insurer had not overcome the presumption against suicide, the issue before all the appellate courts, with few exceptions, was whether or not there should have been a directed verdict for the defendant or a determination that the finding of the jury that there was no suicide was against the weight of the evidence. Here, however, we are reviewing a finding by the trier of fact that defendant overcame the presumption against suicide.

Accordingly, the judgment dismissing the complaint should be affirmed.

Carlsen v. Rockefeller Center North, Inc.,

Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Joel M. Simon of counsel), for appellant.
Tarshis & Hammerman, LLP, Forest Hills (Roberta E. Tarshis
of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered January 14, 2010, which, insofar as appealed from as limited by the briefs, denied the motion of third-party defendant David Shuldiner, Inc. (Shuldiner) for summary judgment dismissing third-party plaintiff Rockefeller Center North, Inc.'s (RCN) claim for breach of contract and granted RCN's cross motion for summary judgment on that claim and declared that Shuldiner breached its contract with RCN by failing to procure the necessary insurance coverage naming RCN as an additional insured, unanimously affirmed, with costs.

The record shows that RCN made an emergency call to Shuldiner to replace a cracked window at RCN's building. The parties had a long business relationship, and during the course of that relationship, it was agreed that Shuldiner would procure insurance coverage for the benefit of RCN before Shuldiner could perform any work at the building. To show compliance with RCN's requirements, Shuldiner had been submitting yearly blanket certificates of insurance containing language stating that RCN was an additional insured. While working on the window, an employee of Shuldiner fell off a scaffold and sustained injuries. The employee commenced an action against RCN and was subsequently granted summary judgment on the issue of liability. In the interim, Shuldiner's insurer denied RCN additional insured coverage because there was no written agreement indicating that RCN was to be named an additional insured under Shuldiner's general liability insurance policy.

Contrary to Shuldiner's contention, there is nothing in the record showing that RCN premised its breach of contract claim solely on the existence of a written agreement so as to preclude it from recovering for breach of an oral contract (compare Federated Dept. Stores, Inc. v Twin City Fire Ins. Co., 28 AD3d 32, 40 [2006]). The evidence establishes the existence of a valid and binding oral contract, as the terms were clear and definite, and the conduct of the parties evinces "mutual assent sufficiently definite to assure that the parties [were] truly in agreement with respect to all material terms" (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999]; see also Travelers Indem. Co. of Am. v Royal Ins. Co. of Am., 22 AD3d 252 [2005]; Richter v Zabinsky, 257 AD2d 397, 398 [1999]). Shuldiner's vice president acknowledged that RCN had spoken to him about procuring insurance naming RCN as an additional insured before Shuldiner could begin any work on the premises, and that RCN had required Shuldiner to insert specific language into the certificate of insurance indicating that it was an additional insured. Although Shuldiner submitted certificates containing such language, there was no agreement in writing that RCN be added as an additional insured, as required under the policy, so as to fulfill its obligation under the parties' oral agreement.

We have considered Shuldiner's remaining arguments and find them unavailing.

Westchester Fire Ins.Co. v MCI Communications Corporation

Dickstein Shapiro LLP, New York (Linda Kornfeld, of the
California Bar, admitted pro hac vice, of counsel), for
appellants.
Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York
(Joseph D'Ambrosio of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 22, 2009, which, inter alia, granted CNA Insurance Company's motion for summary judgment declaring that it does not have a duty to pay MCI's "first dollar" defense costs and denied as moot MCI's motion for summary judgment declaring that CNA has a duty to defend it in numerous landowner actions, unanimously affirmed, with costs.

The court, in a well-reasoned decision, properly found endorsement 30 in the 1992-95 policies at issue unambiguous in providing that MCI is liable for its own defense costs. Contrary to MCI's contention, the provision is not an exclusion (see Pav-Lak Indus., Inc. v Arch Ins. Co., 56 AD3d 287, 288 [2008]). Absent ambiguity, extrinsic evidence is inadmissible. Nor is there a need to resort to contra proferentum, which, in any event, would be inapplicable to this sophisticated policyholder (see Cummins, Inc. v Atlantic Mut. Ins. Co., 56 AD3d 288, 290 [2008]).

We have considered MCI's other contentions and find them unavailing.

GREEN HARBOUR HOMEOWNERS' ASSOCIATION, INC.
v. CHICAGO TITLE INSURANCE COMPANY

Calendar Date: January 8, 2010
Before: Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ.

Poklemba & Hobbs, L.L.C., Malta (Gary C. Hobbs of
counsel), for appellant.
Whiteman, Osterman & Hanna, L.L.P., Albany
(Christopher E. Buckey of counsel), for respondent.

MEMORANDUM AND ORDER

Spain, J.

Appeal from an order of the Supreme Court (Krogmann, J.), entered January 20, 2009 in Warren County, which, among other things, granted defendant's cross motion for summary judgment dismissing the complaint.

By deed dated October 4, 1994, Gene Black and Green Harbour — Cooper Point Acres, the sponsors of the Green Harbour subdivision (hereinafter the sponsors), conveyed the common area lands and appurtenances within "Phase III" of the subdivision to plaintiff and specifically excepted and reserved certain unimproved building lots for the future construction of townhouse units. Although the sponsors intended to except 40 lots — including all remaining unimproved lots on Ridgeview Lane and Lookout Mountain Drive — from the conveyance, it is undisputed that the deed to plaintiff mistakenly excepted only 38 and, consequently, plaintiff also took title to two of the unimproved lots — Nos. 21 and 22 Ridgeview Lane.

Thereafter, plaintiff first negotiated for the purchase of seven remaining undeveloped lots that the parties then assumed the sponsors owned, including 21 and 22 Ridgeview Lane. When unsuccessful, plaintiff sought payment of uncollected association dues allegedly owed by the sponsors in connection with the seven lots. Protracted litigation between the parties ensued [FN1]. In 2002, the sponsors sold the seven lots — purportedly including 21 and 22 Ridgeview Lane — to Kenneth Ermiger. Shortly thereafter, in the context of the litigation between the parties, the sponsors were ordered to obtain title insurance covering the 1994 conveyance for plaintiff's benefit. Accordingly, in 2003, defendant issued to plaintiff the policy that is the center of this dispute.

Significantly, when the title insurance policy was issued, defendant's research revealed variations in the number and location of the lots excepted from the 1994 conveyance to plaintiff. Specifically, defendant noted the difference between the number of lots excepted in the deed and the number reflected in the relevant maps, as well as the indefiniteness of the description of the location of the remaining vacant lots. In light of these problems, defendant included "exclusion 23" in the policy, thereby insuring plaintiff's property "[s]ubject to variations between the number and location of Phase III units described in [plaintiff's 1994 deed] and that shown on Green Harbour Subdivision Map Showing Phase I, II and III . . . and the current tax map, and 'as built' locations of buildings in Phase III." Plaintiff objected to exclusion 23 and attempted to obtain a court order compelling the sponsors to provide a new survey such that the exception could be eliminated, but was unsuccessful. Thereafter, the policy was issued subject to exclusion 23.

In 2005, Ermiger began planning the development of those lots deeded to him by the sponsors and proposed the construction of three townhouses on Lookout Mountain Drive. Plaintiff objected, arguing that the planned construction would encroach on plaintiff's property that surrounds Ermiger's Lookout Mountain Drive lots. Plaintiff then provided notice to defendant of its possible claim and defendant disclaimed coverage under the policy, citing exclusion 23.

Plaintiff nevertheless commenced the underlying action against Ermiger, seeking a judicial determination with respect to each party's ownership interest in the Ridgeview and Lookout Mountain lots, to eject Ermiger from its land surrounding the Lookout Mountain lots and damages as a result of Ermiger's alleged trespass upon its property (Green Harbour Homeowners' Assn., Inc. v Ermiger, 50 AD3d 1199 [2008]). Ermiger, in turn, commenced a third-party action against the sponsors and counterclaimed against plaintiff, seeking, among other things, reformation of plaintiff's 1994 deed to reflect the sponsors' retained ownership of the two Ridgeview Lane lots on the basis of mutual mistake between plaintiff and the sponsors. During the pendency of that litigation, plaintiff commenced the instant action to compel defendant to defend its title to the subject property, alleging breach of contract and seeking indemnification. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Supreme Court granted defendant's cross motion and plaintiff now appeals.

Finding that the plain language of exclusion 23 bars plaintiff's claim to coverage, we affirm. "[A]n insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45 [1991]; see Electric Ins. Co. v Boutelle, 122 AD2d 332, 332-333 [1986]). With respect to the dispute over title ownership of the Ridgeview Lane lots and Ermiger's counterclaim seeking reformation of the 1994 deed based upon mutual mistake,[FN2] we find that defendant's specific exception to the variations in the number of lots conveyed by the 1994 deed with those shown on the relevant subdivision and tax maps clearly encompasses the underlying dispute over ownership of the Ridgeview Lane lots. Likewise, the dispute over the location of the townhouse units that Ermiger has the right to build on his Lookout Mountain Road lots involves the location of the lots excepted in the 1994 deed — another matter specifically covered in exclusion 23, as well as exclusion 24, which excepts "any state of facts a current certified survey would show." Where, as here, an insurance policy's unambiguous terms demonstrate that the policy does not cover the claimed loss, summary judgment is appropriate (see White v Rhodes, 34 AD3d 951, 952-953 [2006]; Senate Ins. Co. v Tamarack Am., 14 AD3d 922, 923 [2005]; Electric Ins. Co. v Boutelle, 122 AD2d at 332-333).

To the extent that the exclusion could be read as ambiguous in this regard, we need not construe it against the insurer where, as here, extrinsic evidence exists that amply resolves any perceived ambiguity by demonstrating that the exclusion was intended to cover precisely the type of issues involved in the litigation between plaintiff, Ermiger and the sponsors (see Fairchild v Genesee Patrons Coop. Ins. Co., 238 AD2d 841, 842 [1997], lv denied 90 NY2d 807 [1997]; cf. State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Econo Truck Body & Equip. v Guaranty Natl. Ins. Co., 162 AD2d 913, 915 [1990]). As previously discussed, prior to the issuance of the policy in 2003, defendant recognized the two-lot discrepancy between the 1994 deed and the Green Harbour subdivision map and tax map for Phase III. Defendant so notified plaintiff and drafted exclusion 23 specifically to address the problem, prompting plaintiff's efforts at having it removed from the title policy.

With regard to the Lookout Mountain Drive property, it is not disputed that Ermiger took title to three lots described as being located on Lookout Mountain Drive; rather, it is the location of these lots and whether the proposed construction will encroach on plaintiff's property that is in dispute. Record evidence reveals that plaintiff was aware of the indefinite description of the properties identified in Phase III, but that the difficult terrain and need for future governmental approvals precluded a more precise description. Again, plaintiff's objection to exclusion 23 reveals its understanding that the policy, issued subject to the exception, would not cover disputes related to the location of these undeveloped lots. Under these circumstances, we hold that defendant met its burden of proving "that the construction it advances is not only reasonable, but also that it is the only fair [one]'" (Pepper v Allstate Ins. Co., 20 AD3d 633, 635 [2005], quoting Boggs v Commercial Mut. Ins. Co., 220 AD2d 973, 974 [1995]).

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

Footnotes

Footnote 1:Such litigation has resulted in several appearances before our Court (see Green Harbour Homeowners' Assn. v Ermiger, 72 AD3d 1186 [2010]; Green Harbour Homeowners' Assn., Inc. v Ermiger, 50 AD3d 1199 [2008]; Black v Green Harbour Homeowners' Assn., Inc., 37 AD3d 1013 [2007]; Black v Green Harbour Homeowners' Assn., Inc., 19 AD3d 962 [2005]; Green Harbour Homeowners' Assn., Inc. v G.H. Dev. & Constr., Inc., 14 AD3d 963 [2005]; Matter of Green Harbour Homeowners' Assn. v Town of Lake George Planning Bd., 1 AD3d 744 [2003]; Green Harbour Homeowners' Assn., Inc. v G.H. Dev. & Constr., 307 AD2d 465 [2003], lv dismissed 100 NY2d 640 [2003]).

Footnote 2: In 2008, this Court reversed Supreme Court's order granting Ermiger's motion for summary judgment as to this claim, finding it to be time-barred (Green Harbour Homeowners' Assn., Inc. v Ermiger, 50 AD3d at 1200).

 

Clemmer v. Drah Cab Corp.

Greenstein & Milbauer, LLP, New York (Andrew W. Bokar of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered May 20, 2008, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), affirmed, without costs.

The failure of defendants' medical experts to discuss plaintiff's medical records indicating bulging or herniated discs does not require denial of defendants' motion (DeJesus v Paulino, 61 AD3d 605, 607 [2009]; Shumway v Bungeroth, 58 AD3d 431 [2009]), since, contrary to plaintiff's contention, defendants' neurologist detailed the specific objective tests he used in his personal examination of plaintiff, which revealed full range of motion, and their radiologist found on review of plaintiff's MRI films no evidence of disc bulging or herniation (DeJesus at 607). In opposition to defendants' motion, plaintiff submitted the sworn affirmation of Dr. Pervaiz Qureshi, the unsworn report and records of his chiropractor, Dr. Trager, unsworn MRI reports of Dr. Robert Scott Schepp, his deposition testimony and his own affidavit. Dr. Qureshi, who examined plaintiff more than two years after the accident, found limitations in plaintiff's range of motion. He reviewed the unsworn reports of Dr. Trager and Dr. Schapp and, in language that tracked Insurance Law § 5102(d), found plaintiff to have suffered a serious injury which was causally related to this accident. Dr. Trager examined plaintiff approximately one week after the accident and his report found range of motion limitations in plaintiff's spine. However, the report was unsworn and therefore inadmissible (see Petinrin v Levering, 17 AD3d 173 [2005]). Also unsworn and therefore inadmissible were the MRI reports of Dr. Schepp which found herniations and disc bulges.

While "evidence, otherwise excludable at trial, may be considered to deny a motion for summary judgment," such evidence cannot "form the sole basis for the court's determination" (Largotta v Recife Realty Co., 254 AD2d 225 [1998], quoting Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541 [1981]). To the extent plaintiff's Dr. Qureshi's conclusions are based on the unsworn chiropractic report and the unsworn MRI reports, those conclusions are inadmissible, because defendants' experts did not submit those unsworn reports with their own reports or expressly rely on them in reaching their own conclusions (Hernandez v Almanzar, 32 AD3d 360, 361 [2006]).

Plaintiff argues that our decision in Rivera v Super Star Leasing, Inc. (57 AD3d 288 [2008]) permits the use of those unsworn reports for purposes of opposing a motion for summary judgment. In Rivera, plaintiff's expert incorporated into his affirmation in support of his conclusion that plaintiff sustained a serious injury several unsworn reports of other doctors who examined plaintiff closer in time to the accident. We found that "these unsworn reports were not the only evidence submitted by plaintiff in opposition to the motion, and may be considered to deny a motion for summary judgment" (citing Largotta v Recife Realty Co., 254 AD2d at 225).

Although the dissent contends that the facts of Rivera are "essentially indistinguishable from the present case," the facts here compel a different result. As here, the MRI reports submitted by plaintiff in Rivera were unsworn; unlike here, those MRI reports were referred to by both defendants' and plaintiff's experts in their affirmations and hence, were properly before the court (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]; Brown v Achy, 9 AD3d 30, 32 [2004]). Moreover, the Rivera MRI of the plaintiff's spine was sufficient to establish the existence of disc bulges and herniations as both defendant's and plaintiff's physicians acknowledged those conditions, differing only as to the cause (see Toure v Avis Rent-A-Car, 98 NY2d 345 [2002].

In this case, defendants did not rely on or make reference to plaintiff's MRI reports but rather submitted their own sworn MRI report which found no herniations or disc bulges. Nor did defendants' physicians refer to plaintiff's physician's unsworn report. While it is true that plaintiff's expert in Rivera relied on several unsworn reports of other doctors who examined plaintiff, unlike here, the MRI report provided other contemporaneous evidence in admissible form, bringing it within the requirements of Largotta.

The dissent argues that plaintiff's doctor's review of plaintiff's MRI films constitutes the additional evidence needed to bring this case within the parameters of Rivera. However, he simply states he is "in agreement" with the results of Dr. Schepp's unsworn and therefore inadmissible report containing Dr. Schepp's interpretation of the films. This bootstrapping process should not be used to bring inadmissible evidence before the motion court. Significantly, Dr. Qureshi makes no reference to defendants' sworn MRI report interpreting those films, which found no evidence of disc bulge, protrusion or herniation.

Moreover, we note that Dr. Qureshi's examination was conducted only after defendants moved to dismiss the complaint. His report merely states that "if the history is correct, there is a casual relationship between the injuries and the accident." The only way he could arrive at that conclusion would be to rely on the unsworn report of Dr. Trager. In the absence of any objective medical basis for the conclusion causally relating plaintiff's injuries to the accident, such "conclusory assertions tailored to meet statutory requirements" are insufficient to defeat defendant's motion (Shaw v Looking Glass Assoc., LP, 8 AD3d 100, 103 [2004]; see also Navedo v Jaime, 32 AD3d 788 [2006]).

Thus, plaintiff failed to submit admissible contemporaneous evidence of the extent and duration of the alleged limitations in his spine (see Lopez v Abdul-Wahab, 67 AD3d 598, 599 [2009]). Plaintiff's examining physician's quantitative range of motion assessment more than two years after the accident is too remote in time to warrant the inference that the limitations were caused by the accident (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]).

Defendants met their initial burden of showing prima facie that plaintiff did not sustain a 90/180-day injury by submitting plaintiff's affidavit in which he said he returned to work 2½ months - i.e., less than 90 days - after the accident. In opposition, plaintiff submitted no competent objective medical proof or other evidence to raise an issue of fact (see Beaubrun v New York City Tr. Auth., 9 AD3d 258, 259 [2004]).

All concur except Renwick, J. who dissents in a memorandum as follows:

RENWICK, J. (dissenting)

I disagree with the majority's conclusion that the order granting defendants' motion for summary judgment dismissing the complaint should be affirmed. Specifically, in finding that plaintiff failed to meet her burden of raising a triable issue on serious injury, the majority incorrectly distinguishes our precedent in Rivera v Super Star Leasing, Inc. (57 AD3d 288 [2008]), which stands for the proposition that a plaintiff can rely upon unsworn reports of a treating physician to raise an issue of fact on serious injury as long as such evidence is not the only evidence submitted in opposition to the motion for summary judgment. Accordingly, I respectfully dissent.

On May 29, 2005, plaintiff was the passenger of a vehicle involved in a motor vehicle accident with a vehicle owned and operated by defendants. Plaintiff commenced this action against defendants seeking to recover damages; plaintiff alleged that he sustained injuries to the cervical and lumbar portions of his spine. Defendants moved for summary judgment dismissing the complaint in its entirety, arguing that plaintiff did not sustain a "serious injury" under Insurance Law § 5102(d). Supreme Court granted the motion and dismissed the action.

I agree with the majority to the extent it finds that defendants met their burden of establishing prima facie that plaintiff did not sustain permanent consequential or significant limitations of his spine by submitting the affirmations of several doctors who, upon examining plaintiff and performing objective tests, similarly concluded that plaintiff's injuries were resolved (see e.g. Charley v Goss, 54 AD3d 569, 570-571 [2008], affd 12 NY3d 750 [2009]; Figueroa v Castillo, 34 AD3d 353 [2006]). Likewise, I agree that defendants also established that plaintiffs had no 90/180-day injury by submitting plaintiff's affidavit in which he said he returned to work 2½ months - i.e. less than 90 days - after the accident (see Lloyd v Green, 45 AD3d 373 [2007]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]).

The burden then shifted to plaintiff to raise a triable issue of fact that he sustained a serious injury (see Licari v Elliot, 57 NY2d 230, 235 [1982]; accord Gaddy v Eyler, 79 NY2d 955, 957 [1992]). In opposition to the motion, plaintiff submitted an affidavit from Dr. Pervaiz Qureshi, who examined him on March 6, 2008, almost three years after the accident. The physical examination revealed significant limitations of use of plaintiff's spine. Dr. Qureshi reviewed the medical report prepared by plaintiff's treating chiropractor, Dr. Donald Trager, who had examined plaintiff on June 5, 2005, within a week of the accident, and found significant limitations of use of his spine. Dr. Qureshi also reviewed the MRIs taken of plaintiff on August 9 and August 15, 2005, and agreed with the MRI reports indicating, respectively, herniations and bulges of the cervical spine, as well as bulges of the lumbar spine. Based upon his recent physical examination and review of the medical reports and MRIs, Dr. Qureshi concluded that plaintiff sustained permanent consequential and significant limitations of use of his spine and that such serious injury was causally related to the automobile accident.

Supreme Court found that plaintiff's evidence was insufficient to raise a triable issue of fact that he had suffered permanent consequential or significant limitations of use of his spine. Initially, the court determined that the MRI reports submitted by plaintiff "though unsworn, were of the diagnostic studies relied upon by defendants' expert for his radiologic[al] assessment, and, as such, are properly before the court." The court, however, determined that "[t]he [unsworn] report of the chiropractor is not properly before the court and cannot be considered." Disregarding such unsworn report, the court found the record devoid of any admissible contemporaneous evidence of the extent of plaintiff's limitations of use of his spine. As a result, the court found that "[t]he examining physician's quantification of spinal limitations, more than two and one half years after the accident, is too remote in time to raise an issue of fact as to whether the limitations were caused by the accident."

Based on existing case law in this Department, I conclude that Supreme Court erred in finding, in effect, that the examining physician's sworn opinion that plaintiff suffered a serious injury was deficient because of the expert's reliance upon the unsworn report of plaintiff's chiropractor to establish the contemporaneous limitations of use of his spine. It is well established that " evidence, otherwise excludable at trial, may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for the court's determination'" (Largotta v Recife Realty Co., 254 AD2d 225, 225-226 [1998] quoting Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541 [1981]). This principle applies with equal force to unsworn medical reports submitted to rebut a defendant's showing of lack of serious injury (see e.g. Hammett v Diaz-Frias, 49 AD3d 285 [2008]; cf. Henkin v Fast Times Taxi, 307 AD2d 814 [2003] [unsworn reports are insufficient if they are the only evidence in opposition]).

This Court's holding in Rivera v Super Star Leasing, Inc. (57 AD3d 288 [2008]), illustrates the point. In Rivera, this Court found that the plaintiff raised a triable issue of fact on serious injury based upon the sworn report of a physician who conducted a recent examination of the plaintiff and found significant limitations of use of his spine. In rendering his sworn opinion that the plaintiff had suffered a serious injury (i.e. permanent consequential and significant limitations of use of his spine), the examining physician relied upon several unsworn reports including that of the treating physician who conducted a contemporaneous examination of the plaintiff and found significant limitations of use of his spine. This Court found that these unsworn reports were properly considered to deny a motion for summary judgment because they "were not the only evidence submitted by plaintiff in opposition to the motion" (id.).

The facts of Rivera are essentially indistinguishable from the present case. Here, as in Rivera, the examining physician, who conducted the recent examination and rendered a sworn opinion that plaintiff suffered a serious injury, relied upon the unsworn report of the treating physician, whose contemporaneous examination of plaintiff also revealed significant limitations of use of plaintiff's spine. Since, as in Rivera, the unsworn contemporaneous report was not the only evidence submitted by plaintiff in opposition to the motion, this evidence should have been considered by the court below in determining whether plaintiff had raised a triable issue of fact on serious injury, i.e. a permanent consequential or significant limitations of use of his spine.

The majority's attempt to distinguish Rivera is not persuasive. The majority asserts that Rivera is distinguishable because there the unsworn MRI reports relied upon by the examining physician, who rendered an opinion of serious injury, were properly before the court since the defendant's medical experts also made reference to them. In contrast, in this case, defendant's medical experts did not rely upon plaintiff's MRI reports. The majority finds this factual distinction to be dispositive because they contend that defendant's reliance on plaintiff's MRI reports in Rivera provided "the other" contemporaneous medical evidence in admissible form, albeit concededly only insofar as establishing the existence of disc bulges and herniations in plaintiff's spine.

The factual distinction the majority draws between Rivera and this case is analytically insignificant. The majority overlooks the crucial fact that, in this case, the examining physician himself reviewed the actual MRI films. He did not rely on any unsworn MRI reports. Rather, after his own review of the MRI films, he concluded that they established disc bulges and herniations in plaintiff's spine. Thus, it was based upon his own MRI findings, his physical examination of plaintiff, and his review of the treating physician's report that the examining physician concluded that plaintiff sustained a serious injury (cf. Byong Yol Yi v Canela, 70 AD3d 584 [2010] ["The affirmed report of plaintiff's doctor was admissible, even though it relied in part on the unsworn reports of another doctor who read plaintiff's MRIs"] citing Rivera, 57 AD3d 288; see also Pommells v Perez, 4 NY3d 566, 577 n5 [2005] ["Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence" [citation omitted]).

Contrary to the majority's contention, it remains that Rivera and this case are indistinguishable with respect to the central fact that in both cases the plaintiff relied upon the unsworn report of the treating physician to establish contemporaneous spine limitations. Nevertheless, as this Court explicitly held in Rivera, "[T]o the extent the expert incorporated into his affirmation several unsworn reports of other doctors who examined plaintiff, these unsworn reports were not the only evidence submitted by plaintiff in opposition to the motion, and may be considered to deny a motion for summary judgment" (Rivera at 288).

The majority makes no attempt to address the significance of the fact that plaintiff's expert (Dr. Qureshi) actually reviewed the MRI films and thus made an independent determination that they revealed bulges and herniations in plaintiff's spine. Instead, the majority completely mischaracterizes Dr. Qureshi's statements by alleging that plaintiff's expert did not conduct his own independent review of the MRIs but rather simply stated that " he [was] in agreement' with the results of Dr. Schepp's [treating physician] unsworn . . . report." This "bootstrapping" allegation, however, is unsupported by the evidence. In actuality, in his affidavit, Dr. Qureshi states, "[A]fter a review of Mr. Clemmer's MRI films, I am in agreement with the above noted results [indicating disk bulges and herniations of plaintiff's spine]" [emphasis added]). Thus, there is no basis to dispute the fact that plaintiff's expert rendered an opinion of serious injury based upon his own MRI findings, his physical examination of plaintiff and his review of the treating physician's reports.

In short, by submitting evidence that demonstrated recent and contemporaneous limitations in his spine (see Valentin v Pomilla, 59 AD3d 184, 184-185 [2009]; Thompson v Abbasi, 15 AD3d 95, 98 [2005]), plaintiff raised a triable issue of fact as to serious injury, and defendants' motion for summary judgment should have been denied with regard to the claims of "permanent consequential limitation of use of a body organ or member" and "significant limitation of use of a body function or system." I agree, however, with Supreme Court to the extent it dismissed the 90/180-day claim, since plaintiff submitted no medical evidence to substantiate his claim that his injuries precluded him from engaging in substantially all his customary daily activities for 90 of the first 180 days after the accident (see Dembele v Cambisaca, 59 AD3d 352, 353 [2009]).

For the foregoing reasons, I would modify the order of Supreme Court to the extent it granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). I would reinstate the complaint only as to the claims of "permanent consequential limitation of use of a body organ or member" and "significant limitation of use of a body function or system."