Coverage Pointers - Volume I, No. 3

New Page 1
7/26/99 EAGLE INSURANCE CO. V. RITE-WAY AUTO SCHOOL, INC.
New York State Supreme Court, Appellate Division, Second Department
Operative Facts Giving Rise to Recovery Govern Obligation to Defend and Indemnify, Not Theories of Liability In Complaint
Plaintiff in an underlying action was injured while driving a vehicle owned by Rite-Way Auto School, Inc., (the insured) and alleged that the driving instructor was negligent in refusing to postpone the lesson due to inclement weather. The insurer commenced this action for judgment declaring it had no obligation to defend and indemnify its insured under an auto policy because allegations in the complaint revealed the insured’s liability was based on negligent supervision. Therefore, the injuries did not result from the "ownership, maintenance or use" of a covered automobile. The court rejected the argument, holding that the right to coverage is controlled by the language of the insurance contract, and the policy applied to injuries "resulting from the ownership, maintenance or use" of a covered automobile. Since the injuries arose out of a car accident, the policy would provide coverage. While the negligence theory alleged in the underlying complaint is relevant to the insured’s liability, the court held that the "operative fact giving rise to any recovery" is the plaintiff’s operation of the insured’s automobile.

7/26/99: SCALIA v. EQUITABLE LIFE ASSURANCE SOCIETY OF U.S.
New York State Supreme Court, Appellate Division, Second Department
"Loss of Sight" Language in Disability Income Insurance Policy is Ambiguous
The insured was injured when a baseball bat broke and struck him in the eye. In this action to recover proceeds of a disability income insurance policy, the insurer argued that the language "loss of sight" in the policy requires loss of sight in both eyes, rather than one eye. The court concluded that the language was ambiguous, as it could be interpreted either as a loss of sight in one eye or a loss of sight in both eyes. Following the well-established principle that ambiguities in an insurance policy are construed against the insurer, the court construed the policy favoring the insured.

7/22/99: HADDEN v. EFFNER
New York State Supreme Court, Appellate Division, Third Department
Basic Economic Loss Requires Proof That Medical Treatment Ascertainable Within One Year of Accident; Verdict For Future Medical Expenses Not Reduced Without Such Proof

Jury awarded plaintiff money damages of $130,000 for personal injuries she sustained in an collision with a vehicle operated by defendant. The issue on appeal was whether the trial court erred in refusing to reduce the jury's award of $80,000 for future medical expenses by the amount of plaintiff's "basic economic loss" (see, Insurance Law § 5102 [a] [1]). The Appellate Division, Third Department noted that defendant was correct in his "central hypothesis" that a jury verdict which awards sums covered as basic economic loss (BEL) must be reduced. However, the court found insufficient proof to demonstrate that the future medical expense award was BEL. In the absence of record evidence supporting a finding that "within one year after the date of the accident causing the injury it [was] ascertainable that further expenses may be incurred as a result of the injury" the court concluded that the subject award does not compensate plaintiff for expenses constituting "basic economic loss". There was proof that the injury to plaintiff's lower back, which formed the basis for the claim for future medical expenses, was not diagnosed until more than 14 months following the accident.

7/22/99: GIBBS v. GENERAL ACCIDENT INSURANCE CO.
New York State Supreme Court, Appellate Division, Third Department
In Sexual Abuse Case, No Obligation to Defend Alleged Abuser, Despite Allegations in Underlying Complaint Sounding Only in Negligence

Defendant issued a homeowner's policy to plaintiff, Harry E. Gibbs, which excluded coverage for personal liability to others for bodily injury which is "expected or intended by the insured". As a result of Gibbs' interaction with a seven-year-old boy during 1992 and 1993, the Montgomery County District Attorney filed charges against him alleging sexual abuse in the first degree and endangering the welfare of a child. Gibbs' notified defendant of the potential for civil litigation. In December 1993, a civil action arising out of these incidents was commenced against Gibbs. On January 20, 1994, he pleaded guilty to the charge of sexual abuse in the first degree and was placed on probation.

On February 1, 1994, defendant notified him that it would not defend or indemnify him in the underlying action due to the policy exclusions. On February 16, 1994, an amended complaint was filed in the underlying action pleading six causes of action; the first four alleged intentional conduct whereas the last two, without incorporating the factual basis of the aforementioned causes of action, alleged causes of action in negligence and emotional distress and expenses resulting from such negligence. In response to a demand for a bill of particulars, it was asserted that "[Gibbs] knowingly and unlawfully subjected the infant plaintiff to sexual contact" and that he was "negligent in that he committed the acts above without foreseeing the possibility of injury to the infant plaintiff, by failing to take into consideration the age of the infant and in acting in a manner intended to gratify himself without first assessing the consequences of his acts".

Prior to the commencement of the civil trial held in November 1995, all causes of action alleging intentional conduct were withdrawn. Testimony thereafter offered by Gibbs directly contradicted the basis of his criminal conviction. Judgment was entered in the amount of $130,000 against him. On June 3, 1996, Gibbs commenced this declaratory judgment action to determine whether defendant must indemnify and reimburse him for legal expenses in the underlying action.

The Appellate Division, Third Department noted that the duty to defend is broader than the duty to indemnify and will be required unless the insurer can show that the allegations of the complaint put that duty solely within policy exclusion. If the allegations in the complaint fall within the "scope of the risks undertaken by the insurer, regardless of how false or groundless those allegations might be" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310), the duty to defend will be found.

However, "[a] party's characterization of the causes of action alleged in a complaint are not controlling". In this pursuit, extrinsic facts may be considered. Despite the fact that the sole allegations left for trial were premised upon acts constituting negligence which could, under other circumstances, trigger a duty to defend the gravamen of this action to be Gibbs' acts of sexual abuse for which he pleaded guilty. The "harm * * * was inherent in the nature of * * * [Gibbs'] acts * * * and that whatever injuries resulted were, as a matter of law, 'intentionally caused' within the meaning of the policy exclusion. Accordingly, the homeowner’s carrier had no obligation to provide its insured with a defense to the lawsuit.

7/22/99: CODY v. PARKER
New York State Supreme Court, Appellate Division, Third Department
Motion for Summary Judgment Based on Lack of Serious Injury Can Be Made on Basis of Unsworn Reports of Plaintiff’s Treating Physician

A defendant seeking summary judgment has the initial burden of establishing that the plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102. Contrary to plaintiff's assertion that defendant could make the requisite showing only with a physician's affidavit or affirmation, a moving defendant may rely on unsworn reports of the plaintiff's treating physician, holds Appellate Division, Third Department.

7/22/99: CONGDON v. PREISMAN
New York State Supreme Court, Appellate Division, Third Department
Diagnosis Based on Purely Subjective Complaints Insufficient to Defeat Motion for Summary Judgment in No Fault

Defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The sole issue on this appeal is whether defendants' summary judgment motion can be defeated based on the contention that plaintiff's tinnitus condition may have constituted a "serious injury". To defeat a motion for summary judgment in a "serious injury" case, plaintiff must provide "competent medical evidence based upon objective medical findings" in support of the injury. However, subjective complaints alone cannot form a basis for denial of defendants' motion, holds Third Department.

7/19/99: MATTER OF SORMANI v. ORANGE COUNTY COMMUNITY COLLEGE
New York State, Appellate Division, Second Department
No Obligation to Indemnify for Sexual Abuse, Sexual Harassment and Unlawful Imprisonment
The court held that an insurer is not obligated to pay a default judgment resulting from an action alleging sexual abuse, sexual harassment and unlawful imprisonment. Since the acts allegedly committed were intentional, they do not constitute an occurrence within the meaning of a general liability policy.

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


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REPORTED DECISIONS

EAGLE INSURANCE COMPANY v RITE-WAY AUTO SCHOOL, INC.
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
Argued - May 27, 1999
CORNELIUS J. O'BRIEN, J.P.
THOMAS R. SULLIVAN
DANIEL W. JOY
NANCY E. SMITH, JJ.
DECISION & ORDER
Eagle Insurance Company, appellant, v Rite-Way Auto School, Inc., et al.,
respondents, et al., defendants.
Rivkin, Radler & Kremer, Uniondale, N.Y. (Evan H. Krinick and Jack D. Jordan of counsel), for appellant.
Gitomer, Schwimmer, Berns & Elliot, Forest Hills, N.Y. (Gary B. Berns of counsel), for respondents Rite-Way Auto School, Inc. and William Palumbo.
O'Connor, O'Connor, Hintz & Deveney, LLP, Garden City, N.Y. (Robert E. O'Connor and Brian Dunning of counsel), for respondent Providence Washington Insurance Company.
In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify its insureds, the defendants Rite-Way Auto School, Inc., and William Palumbo, in an action in the Supreme Court, New York County entitled Anderson v Arias, pending under Index No. 119863/96, and that the defendant Providence Washington Insurance Company is obligated to provide the defense and indemnification, the plaintiff appeals from an order of the Supreme Court, Nassau County (Schmidt, J.), entered April 15, 1998, which granted the motion of the defendants Rite-Way Auto School, Inc., and William Palumbo for summary judgment declaring that it was so obligated and denied its cross motion for summary judgment, inter alia, declaring that the defendant Providence Washington Insurance Company, is obligated to provide defense and indemnification.

ORDERED that the order is affirmed, with one bill of costs to the respndents appearing separately and filing separate briefs.

Ling Anderson was driving an automobile owned by the defendant Rite-Way Auto School, Inc. (hereinafter Rite-Way), when she was involved in an accident. She commenced an action (hereinafter the Anderson lawsuit) in New York County against, among others, Rite-Way and its driving instructor, the defendant William Palumbo. The complaint in the Anderson lawsuit alleged, inter alia, that Palumbo was negligent in refusing Anderson's request to postpone the driving lesson due to inclement weather. Rite-Way's insurer, the plaintiff, Eagle Insurance Company (hereinafter Eagle), disclaimed coverage for injuries arising out of the accident. Eagle commenced the instant action seeking a declaration that it is not obligated to defend or indemnify Rite-Way in the Anderson lawsuit because the allegations in the complaint reveal that Rite-Way's alleged liability is based on a claim of negligent supervision, and therefore, Anderson's injuries did not result from the "ownership, maintenance or use" of a covered automobile.

We agree with the Supreme Court that Eagle is obligated to defend and indemnify both Rite-Way and Palumbo, an additional insured under the policy, in the Anderson lawsuit. The right to coverage is controlled by the language of the contract (see, Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 352), and the subject policy applied to injuries "resulting from the ownership, maintenance or use" of a covered automobile. Although the theory of negligence in the Anderson lawsuit is relevant to Rite-Way's liability, the "operative fact giving rise to any recovery" is Anderson's operation of Rite-Way's automobile (Mount Vernon Fire Ins. Co. v Creative Hous., supra, at 352; see also, U.S. Underwriters Ins. Co. v Val-Blue Corp., 85 NY2d 821; New Hampshire Ins. Co. v Jefferson Ins. Co. of N.Y., 213 AD2d 325; Ruggerio v Aetna Life & Cas. Co., 107 AD2d 744).

Further, contrary to Eagle's contention, the Supreme Court properly declined to issue a declaration with respect to the duty and obligation of the Providence Washington Insurance Company to defend and indemnify Rite-Way in the Anderson lawsuit, as that policy was not submitted to it (see, e.g., American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 425).
O'BRIEN, J.P., SULLIVAN, JOY, and SMITH, JJ., concur.

SCALIA v EQUITABLE LIFE ASSURANCE SOCIETY OF UNITED STATES
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
Argued - May 4, 1999
WILLIAM C. THOMPSON, J.P.
THOMAS R. SULLIVAN
MYRIAM J. ALTMAN
ANITA R. FLORIO, JJ.
98-10190
DECISION & ORDER
Anthony Scalia, respondent, v Equitable Life Assurance Society of United
States, appellant, et al., defendant.
Windels, Marx, Davies & Ives, New York, N.Y. (Thomas J. Mulligan and Alisa Dultz of counsel), for appellant.
Robert E. Koke, St. James, N.Y., for respondent.
In an action to obtain benefits pursuant to a disability income insurance policy, the defendant Equitable Life Assurance Society of United States appeals from so much of an order of the Supreme Court, Suffolk County (Hall, J.), dated October 22, 1998, as granted the plaintiff's cross motion for summary judgment on the complaint to the extent of determining that the language "loss of sight" in the subject insurance policy is ambiguous and may be interpreted either as a loss of sight in one eye or a loss of sight in both eyes.

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

The respondent was injured in August 1990 when a baseball bat broke and struck him in the eye. He brought this action to obtain benefits pursuant to a disability income insurance policy issued by the appellant. The Supreme Court found that the language "loss of sight" in the policy is ambiguous and can be interpreted either as a loss of sight in one eye or a loss of sight in both eyes. Contrary to the appellant's contention, the subject language in the policy is reasonably susceptible to conflicting interpretations. Given the well-established principle that any ambiguities in an insurance policy will be construed against the insurer, the drafter of the policy (see, e.g., Matter of Mostow v State Farm Ins. Co., 88 NY2d 321; Matter of Eveready Ins. Co. v Mazza, 208 AD2d 725; Horowitz v Threadneedle Ins. Co., 194 AD2d 589, 590; Reisman v Coleman, 193 AD2d 659, 660), the construction favoring the respondent prevails. The appellant could have easily removed the ambiguity in this case by adding a few simple words to the policy (see, Silverstein v Continental Cas. Co., 23 AD2d 801, affd 17 NY2d 845). The law requires that it bear the consequences for failing to do so. Accordingly, the determination of the Supreme Court was proper.
THOMPSON, J.P., SULLIVAN, ALTMAN, and FLORIO, JJ., concur.

 

 

 

MATTER OF SORMANI v ORANGE COUNTY COMMUNITY COLLEGE
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
Argued - June 3, 1999
SONDRA MILLER, J.P.
FRED T. SANTUCCI
GABRIEL M. KRAUSMAN
ANITA R. FLORIO, JJ.
98-02443
DECISION & ORDER
In the Matter of Dawn Marie Sormani, etc., appellant, v Orange County Community
College, et al., respondents, United States
Fire Insurance Company, respondent-respondent.
Solomon Abrahams, P.C., White Plains, N.Y., for appellant.
Kerr & Weiss, New Platz, N.Y. (Marsha Solomon Weiss of counsel), for respondent-respondent.
In a proceeding pursuant to CPLR 5227 to compel the payment of a debt owed by a judgment debtor, the petitioner appeals from a judgment of the Supreme Court, Orange County (Murphy, J.), dated February 22, 1999, which dismissed the petition insofar as asserted against the respondent United States Fire Insurance Company.

ORDERED that the judgment is affirmed, with costs.

The petitioner obtained a judgment against the respondent Vance Levin, upon his default in appearing, based upon causes of action alleging sexual abuse, sexual harassment, and unlawful imprisonment. In this proceeding, the petitioner contends that the respondent United States Fire Insurance Company (hereinafter US Fire), which issued a general liability policy to Levin's employer, is obligated to pay the judgment. However, since the acts allegedly committed by Levin were intentional, they do not constitute an occurence within the meaning of the US Fire policy. Accordingly, there was no obligation for US Fire to defend or indemnify Levin in the underlying action and the Supreme Court properly dismissed the petition against the insurer (see, Green Chimneys School for Little Folk v National Union Fire Ins. Co. of Pittsburgh, Pa., 244 AD2d 387; Board of Educ. of E. Syracuse-Minoa Cent. School Dist., v Continental Ins. Co., 198 AD2d 816, 817; see also, Fitzpatrick v American Honda Motor Co., 78 NY2d 61; Ruder & Finn v Seaboard Surety Co., 52 NY2d 663; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875).
S. MILLER, J.P., SANTUCCI, KRAUSMAN, and FLORIO, JJ., concur.

HARRY E. GIBBS, Respondent,
v.
GENERAL ACCIDENT INSURANCE COMPANY,
Appellant.

Calendar Date: June 1, 1999

Before: Mercure, J.P., Peters, Spain, Carpinello and Graffeo, JJ.
Pemberton & Briggs (James L. Pemberton of counsel), Schenectady, for appellant.
Horigan, Horigan & Lombardo (Krishna K. Singh of counsel), Amsterdam, for respondent.
Peters, J.
Appeal from an order of the Supreme Court (Best, J.), entered June 30, 1998 in Montgomery County, which, inter alia, partially denied defendant's motion for summary judgment dismissing the complaint.

Defendant issued a homeowner's policy to plaintiff which was in effect for the period of March 19, 1991 to March 19, 1992. The policy excluded coverage for personal liability and/or medical payments to others due to bodily injury "expected or intended by the insured".

On or about February 24, 1993, plaintiff was charged with first degree sexual abuse, a felony, and endangering the welfare of a child, a misdemeanor, as a result of his interaction with a seven-year-old boy during 1992 and 1993. In December 1993, a civil action was commenced against him for the recovery of monetary damages premised upon his alleged acts of sexual contact and negligence with respect to such minor. In February 1994, the complaint in the underlying civil action was amended to include causes of action based on both intentional and negligent physical contact. Although not included in the record, defendant continued to deny coverage and, as reflected in the companion case of Gibbs v CNA Ins. Cos. (___ AD2d ___ [decided herewith]), plaintiff had, prior to such amendment, pleaded guilty to the charge of sexual abuse in the first degree. This declaratory judgment action was commenced in June 1994, seeking a declaration that defendant owed plaintiff a duty to defend and indemnify.

Prior to the commencement of the bench trial held in November 1995 in the civil action, all causes of action alleging intentional conduct in that action were withdrawn. Plaintiff was ultimately found negligent and was ordered to pay $130,000 in damages, which was affirmed by this court in July 1997 (see, Gloria X. v Gibbs, 241 AD2d 579). Our affirmance triggered defendant's motion for summary judgment seeking dismissal of the declaratory judgment action by asserting that the acts occurred after the contract of insurance had expired. Plaintiff cross-moved seeking summary judgment and a declaration that defendant had a duty to defend and indemnify. Supreme Court, inter alia, granted plaintiff's cross motion to the extent of finding that defendant had a duty to defend and granted that part of defendant's motion which sought to dismiss the indemnification claim. Defendant appeals.

Where "changes were made to create insurance coverage where none had existed[, w]e should not supply an imprimatur to that motive" (Home Mut. Ins. Co. v Lapi, 192 AD2d 927, 930). For all of the reasons underlying our determination in Gibbs v CNA Ins. Cos. (supra), coupled with what we find to be an obvious manipulation of our legal process solely for the purpose of procuring coverage (see, Home Mut. Ins. Co. v Lapi, supra; see also, Allstate Ins. Co. v Mugavero, 79 NY2d 153), we reverse that part of Supreme Court's order which denied defendant's motion for summary judgment regarding the duty to provide a defense.

Mercure, J.P., Spain, Carpinello and Graffeo, JJ., concur.

ORDERED that the order is modified, on the law, with costs to defendant, by reversing so much thereof as denied in part defendant's motion for summary judgment dismissing the complaint and granted in part plaintiff's cross motion for summary judgment; motion granted in its entirety, cross motion denied, summary judgment awarded to defendant and complaint dismissed; and, as so modified, affirmed.

JACK D. CODY et al., Respondents,
v
LAURIE ANNE PARKER, Appellant.

Calendar Date: May 25, 1999
Before: Mikoll, J.P., Mercure, Peters, Carpinello and Graffeo, JJ.
Moran & Pronti (Christine D'Addio Hanlon of counsel), Saratoga Springs, for appellant.
Jennifer A. Jensen (Joseph E. Nichols of counsel), Glens Falls, for respondent.
Mikoll, J.P.
Appeal from an order of the Supreme Court (Dier, J.), entered September 25, 1998 in Washington County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff Jack D. Cody (hereinafter plaintiff) and his wife, derivatively, commenced this action alleging that plaintiff sustained serious injuries in a November 1994 automobile accident when his vehicle, stopped at a traffic light, was struck in the rear by defendant's vehicle. At the time of this accident, plaintiff was under the care of a neurologist, Fred Scialabba, for back and neck injuries sustained in an accident in January 1994 and was on light duty in his employment as an assistant building superintendent. Following discovery, defendant moved for summary judgment on the ground that plaintiff had not sustained a "serious injury" within the meaning of Insurance Law § 5102 (d). Supreme Court denied the motion, prompting this appeal.

We reverse. A defendant seeking summary judgment has the initial burden of establishing that the plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Uhl v Sofia, 245 AD2d 988, 989). Contrary to plaintiff's assertion that defendant could make the requisite showing only with a physician's affidavit or affirmation, a moving defendant may rely on unsworn reports of the plaintiff's treating physician (see, Tankersley v Szesnat, 235 AD2d 1010, 1012 n 3; Torres v Micheletti, 208 AD2d 519; Pagano v Kingsbury, 182 AD2d 268, 270-271). Here, defendant relied upon, inter alia, plaintiff's medical records which failed to indicate that he suffered any additional injuries, or aggravation of his preexisting condition, in the second accident. Plaintiff acknowledged in his deposition testimony that he declined medical treatment at the scene, and otherwise sought no medical attention specifically related to the November accident. Although he called the doctor's office the same day complaining of a burning sensation in his neck, he did not see Scialabba until his next regularly scheduled appointment in January 1995.

Faced with defendant's submissions, it was incumbent upon plaintiff to "set forth 'competent medical evidence based upon objective medical findings and diagnostic tests to support his claim * * * [because] subjective complaints of pain * * * absent other proof [are] insufficient to establish a "serious injury"'" (Tankersley v Szesnat, supra, at 1012, quoting Eisen v Walter & Samuels, 215 AD2d 149, 150). This plaintiff failed to do. Plaintiff's admissible evidence consisted only of his own affidavit and that of Scialabba. Scialabba's affidavit does not allude to any objective medical findings or opine that plaintiff sustained a serious injury in the November 1994 accident. Rather, he states only that following the second accident, it "appeared" that plaintiff had increased cervical pain and a worsening of his earlier condition. Those portions of plaintiff's submissions consisting of unsworn letters from Scialabba to plaintiff's general practitioner and attorney are of no probative value (see, Parmisani v Grasso, 218 AD2d 870, 871-872; Pagano v Kingsbury, 182 AD2d 268, 270). Even were they properly considered, Scialabba's correspondence does not aid plaintiff's cause. His letters to plaintiff's general practitioner refer only to the January 1994 accident, while the letter to plaintiff's attorney states only that the November accident worsened plaintiff's condition, without rendering an opinion that it resulted in a serious injury.

Nor do plaintiff's submissions raise a triable issue of fact as to whether the November accident resulted in a "medically determined injury or impairment of a non-permanent nature" which prevented him from performing his usual daily activities for at least 90 of the first 180 days after the accident (Insurance Law § 5102 [d]; see, La Rue v Tucker, 247 AD2d 702, 704). Scialabba's affidavit makes no reference to plaintiff's inability to perform his customary activities as a result of either accident, and his letters, inadmissible in any event, indicate only that plaintiff was disabled as a result of the January 1994 injury. Plaintiff acknowledged that he lost no time from work as a result of the second accident and continued to work for a year thereafter. Both he and his wife testified that the degree to which his daily activities were limited did not change after the November accident.

Mercure, Peters, Carpinello and Graffeo, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.

JOSEPH L. CONGDON et al., Appellants,
v
BENJAMIN S. PREISMAN et al., Respondents.

Calendar Date: June 2, 1999
Before: Mercure, J.P., Crew III, Yesawich Jr. and Graffeo, JJ.
Kouray & Kouray (Charles A. Sarris of counsel), Schenectady, for appellants.
Carter, Conboy, Case, Blackmore, Napierksi & Maloney (Joseph T. Johnson of counsel), Albany, for respondents.
Graffeo, J.
Appeal from an order of the Supreme Court (Lynch, J.), entered September 11, 1998 in Schenectady County, which granted defendants' motion for summary judgment dismissing the complaint.

This action was commenced by plaintiff Joseph L. Congdon (hereinafter plaintiff), and his wife derivatively, to recover damages for injuries he sustained as the result of an automobile accident which occurred in December 1995. After issue was joined, defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court granted defendants' motion and plaintiffs now appeal.

Although plaintiff allegedly sustained several different injuries, the sole issue on this appeal is whether defendants' summary judgment motion can be defeated based on the contention that plaintiff's tinnitus condition may have constituted a "serious injury". It is axiomatic that to defeat a motion for summary judgment in a "serious injury" case, plaintiff must provide "competent medical evidence based upon objective medical findings" in support of the injury claim (Eisen v Walter & Samuels, 215 AD2d 149, 150; see, Delaney v Lewis, AD2d ___, ___, 682 NYS2d 270, 271; Decker v Stang, 243 AD2d 1033, 1036, lv denied 91 NY2d 812). Moreover, subjective complaints alone cannot form a basis for denial of defendants' motion (see, Fountain v Sullivan, AD2d [May 20, 1999], slip opn p 2).

Plaintiffs submitted the affirmation of Karen Tan, a physician specializing in otolaryngology, in opposition to defendants' motion. While noting that tinnitus may be subjective or objective, the latter of which can be heard by an examiner, Tan made no suggestion that plaintiff's condition was of the objective variety. Tan also indicated that tinnitus can be accompanied by a hearing impairment, but acknowledged plaintiff's audiologic evaluation revealed no loss of hearing. Furthermore, plaintiff's MRI and audiologic evaluation were negative. Although Tan opined that plaintiff sustained a "permanent loss, to a degree, of the function of his audiological system", her diagnosis was clearly derived from plaintiff's subjective complaints which were insufficient to raise a question of fact (see, Jones v Malark, ___ AD2d [May 20, 1999]; La Rue v Tucker, 247 AD2d 702). We recognize that under some circumstances tinnitus may be a basis for the finding of a "serious injury" (see, e.g., Preston v Young, 239 AD2d 729), but such a finding was not warranted in this case. In contrast to the facts in Preston v Young (supra), here there is no indication that the diagnosis of tinnitus rested on anything more than plaintiff's subjective complaints of ringing in the ear, which were not accompanied by hearing loss or any other manifestation of an injury. We conclude that under these circumstances in which the sole basis for the diagnosis is plaintiff's subjective complaints, summary judgment was appropriate (see, Peel v Jordan, 202 AD2d 485) and Supreme Court's dismissal of plaintiffs' complaint is affirmed.

Mercure, Crew III, Yesawich Jr. and Graffeo, JJ., concur.

ORDERED that the order is affirmed, with costs.

CHERYLANN S. HADDEN et al., Respondents
v
ANTHONY EFFNER, Appellant.

Calendar Date: May 27, 1999
Before: Mikoll, J.P., Mercure, Crew III, Yesawich Jr. and Carpinello, JJ.
Capecelatro, Del Buono & Compson P.C. (David R. Diodati of counsel), Utica, for appellant.
Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (Jessica A. Desany of counsel), Albany, for respondents.
Mercure, J.
Appeal from an order and judgment of the Supreme Court (Ingraham, J.), entered July 30, 1998 in Otsego County, upon a verdict rendered in favor of plaintiffs.

A jury awarded plaintiff Cherylann S. Hadden (hereinafter plaintiff) money damages of $130,000 for personal injuries she sustained in an August 12, 1993 collision with a vehicle operated by defendant. As limited by defendant's brief, the only issue that we need consider is whether Supreme Court erred in refusing to reduce the jury's award of $80,000 for future medical expenses by the amount of plaintiff's "basic economic loss" (see, Insurance Law § 5102 [a] [1]). We conclude that Supreme Court did not err and accordingly affirm.

Although defendant is correct in his central hypothesis that "a jury verdict which awards sums covered as basic economic loss must be reduced" (see, Fischer v Luczak, 198 AD2d 474, 475), we are not persuaded by his unsupported assumption that the $80,000 award for future medical expenses was intended to compensate plaintiff for expenses falling within the definition of "basic economic loss". To the contrary, in the absence of record evidence supporting a finding that "within one year after the date of the accident causing the injury it [was] ascertainable that further expenses may be incurred as a result of the injury" (Insurance Law § 5102 [a] [1] [iv]), which this court has interpreted to mean that expenses for treatment for the injury had been submitted to the no-fault carrier within the one-year period (see, Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873), we conclude that the subject award does not compensate plaintiff for expenses constituting "basic economic loss" (see, id.). Notably, the injury to plaintiff's lower back, which formed the basis for the claim for future medical expenses, was not diagnosed until more than 14 months following the accident.
Mikoll, J.P., Crew III, Yesawich Jr. and Carpinello, JJ., concur.
ORDERED that the order and judgment is affirmed, with costs.

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