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03/01/01:         PALMER v.  ALIBERTI

New York State, Appellate Division, First Department

Insurance Carrier’s Departmental Reorganization Deemed Valid Excuse for Default in Answering Complaint

Plaintiff moved for default judgment against defendants, who failed to answer the complaint two months after service.  Defendants cross-moved to compel plaintiff to accept the answer.  Defendants had promptly forwarded the complaint to their insurer who, by reason of internal confusion in its legal department during a period of departmental reorganization, did not timely refer the complaint to counsel.  The court held that this was a reasonable excuse for defendants’ non-prejudicial two-month delay in answering the complaint.  It was also found that the verified answer submitted in support of the cross claim set forth a meritorious defense.

 

02/22/01:         TRAVIS v. ALLSTATE INSURANCE CO.

New York State, Appellate Division, First Department

Summary Judgment Improper where Insured raises Question of Fact whether Insurer waived 60-Day Period for Filing Proof of Loss

In an action for wrongful refusal to pay an insurance claim, insurer claimed that its insured breached the contract by failing to comply with a policy requirement that he submit a sworn proof of loss within 60 days of a demand.  The insured maintained that the insurer led him to believe that it would not require strict compliance with the 60-day rule and thereby waived and was estopped from enforcing the requirement.  The insured showed that he received the 60-day demand on December 6, 1996, together with a demand for an examination under oath, which was scheduled for January 9, 1997.  On January 1 the insured broke his leg and telephoned insurer’s attorney to reschedule.  The insured also told the attorney he was having difficulty understanding the proof of loss form.  The attorney assured him that the examination would be rescheduled and offered to help him fill out the proof of loss at that time. The examination was later adjourned again for both parties’ convenience.  The offer of assistance was not rescinded, nor was there any indication that submission of proof of loss was required prior to the adjourned date. In a letter dated April 11, 1997, after an examination set for April 9 had been canceled, the insurer disclaimed coverage on the ground that the insured had not filed a proof of loss within 60 days.  The court found that these allegations were sufficient to create a question of fact whether the insurer waived the 60-day time limit or should be estopped from asserting it.

 

02/26/01:         MATTER OF NEW YORK CENTRAL MUTUAL FIRE INS. CO. v. JEDLICKA

New York State, Appellate Division, Second Department

Sixty-Day Period to Demand Trial de Nova run s from Date of Arbitrator’s Decision

The insured made a claim for uninsured motorist benefits, and an award was issued after arbitration of the claim.  The decision, dated November 9, 1998, was mailed to the parties on November 16, 1998.  On January 13, 1999, the insurer served a demand for trial de novo because the amount awarded exceeded the minimum limits of bodily injury liability.  The policy provided that if such a demand were not made “within 60 days of the arbitrators’ decision” the amount of damages awarded by the arbitrator would be binding.  The court held that the policy clearly and unambiguously provided that the 60-day period begins to run from the date of the decision, not from the date that the decision was served.  Moreover, the insurer was not entitled to an additional five days to make its demand pursuant to CPLR 2103(b)(2) -- that statute is applicable only to service of papers in a pending action “where a period of time prescribed by law is measured from the service of a paper and service is by mail.”

 

02/26/01:         ALMAR, INC. v. UTICA MUTUAL INSURANCE COMPANY

New York State, Appellate Division, Second Department

Insurer has Duty to Defend where Facts Establish Possibility of Coverage

Underlying plaintiff, an employee of insured, was injured on the insured’s premises.  The complaint alleges that the underlying plaintiff was in the course of her employment at the time of injury.  The insurer disclaimed coverage, as the policy excludes coverage for bodily injury to employees for injuries arising in the course of their employment.  The insured informed the insurer that the employee was not working at the time of the injuries, but was visiting the premises as a customer.  The court held that the insurer had a duty to defend, as the duty arises whenever the allegations of the underlying complaint potentially give rise to a covered claim or where the insurer has actual knowledge of facts establishing a reasonable possibility of coverage.  The insurer could not ignore information provided by its insured that the underlying plaintiff was not working at the time of the accident when assessing its duty to defend.

 

02/26/01:         NEW YORK CENTRAL MUT. FIRE INS. CO. v. TURNERSON’S ELECTRIC, INC.

New York State Supreme Court, Appellate Division, Second Department

Insurer’s Subrogation Action Dismissed as Sanction for Destruction of Evidence during Course of Investigation

In January 1992, a house owned by plaintiff's insured was destroyed by fire. The house was so extensively damaged that Putnam County Bureau of Fire was unable to determine the cause.  Therefore, plaintiff hired a private investigator to conduct an investigation. The investigator, who had no formal education beyond high school and limited training in the area of fire analysis, issued two reports concluding that the fire was electrical in nature. During the course of his inquiry, the investigator removed an electric circuit panel box from the scene of the fire to examine it. However, acting on instructions from a claims adjuster employed by the plaintiff, the investigator later destroyed the circuit panel. Based upon the investigator's opinion that the fire was electrical in origin, plaintiff commenced this action contending that defendants had negligently performed electrical work in the residence. After conducting discovery, defendants moved for summary judgment dismissing the complaint on the ground of spoliation of evidence, or on the alternative ground that there was no evidence that their acts or omissions were a proximate cause of the fire. The court held that defendants were entitled to summary judgment.  “Where, as here, a party destroys key physical evidence ‘such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence’, the spoliator may be punished by the striking of its pleading . . . even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation.”  Since the plaintiff intentionally ordered the destruction of the circuit panel in the course of gathering evidence for a potential action, the court determined that dismissal of the plaintiff's complaint was an appropriate remedy.

 

02/20/01:         ASTA v. EIVERS 

New York State, Appellate Division, Second Department

Serious Injury Threshold: Bulging Disc May Constitute Serious Injury

Plaintiff commenced action for injuries she sustained in an automobile accident.  On motion for summary judgment, the court found that defendant failed to establish a prima facie case showing that plaintiff did not sustain a “serious injury.”  The court held that defendant failed to demonstrate that the claimed injury -- bulging discs – were not causally related to the accident. As to the injury itself, the Court held that a bulging disc might constitute a serious injury within the meaning of Insurance Law §5102(d).

 

02/20/01:         DAILY NEWS, LP v. OCS SECURITY, INC.

New York State Supreme Court, Appellate Division, Second Department

Additional Insured entitled to Coverage where Injuries in Underlying Action arose out of Named Insured’s Work

Daily News was named an “additional insured” pursuant to a policy issued to OCS, who was hired by Daily News to provide security guard services at its facility.  The endorsement named Daily News as an “additional insured”, but only “with respect to their liability arising out of ‘your work’ for that insured by or for you”. “Your work” was defined as “[w]ork or operations performed by you or on your [be]half” and “[m]aterials, parts or equipment furnished in connection with such work or operations.”  Plaintiff in the underlying action was injured when struck by a descending elevator door operated by an employee of OCS.  Although OCS’s employee was on his lunch break when the accident occurred, because his work necessarily required him to use the elevator to perform his job and to reach and leave his workplace, the injuries in the underlying action arose out of the work performed by OCS for the insured.  Therefore, pursuant to the endorsement in the policy, Daily News was entitled to defense and indemnification in the underlying action.

 

02/20/01:         MASSEY v. SHE SHANG JUNG

New York State Supreme Court, Appellate Division, Second Department

Serious Injury Threshold: Medical Affidavit that fails to Explain Nature of Medical Treatment and Gap in Treatment deemed Insufficient to Defeat Summary Judgment

Summary judgment dismissing the complaint was proper in this personal injury action where the affidavit of plaintiff’s examining physician failed to raise a triable issue of fact whether plaintiff sustained a “serious injury” within the meaning of Insurance Law § 5102(d).  The medical affidavit prepared by plaintiff's examining orthopedist was insufficient to defeat the motion because it failed to explain the nature of plaintiff’s medical treatment, and did not explain a 4 1/2-year gap between plaintiff’s initial treatments by a neurologist and her visit to the orthopedist.

 

02/20/01:         FINKELSHTEYN v. HARRIS

New York State Supreme Court, Appellate Division, Second Department

Serious Injury Threshold: Summary Judgment Proper where Medical Affidavit Failed to Establish that Auto Accident was Proximate Cause of Disc Herniation

Court held that summary judgment dismissing the complaint was proper where the affidavit of plaintiff’s treating physician failed to establish that the auto accident was the proximate cause of her injuries.  On motion for summary judgment, defendants established a prima facie case that the plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d) as a result of the automobile accident in 1997.  In opposition to the motion, the plaintiff submitted the affidavit of her physician, who stated that plaintiff suffered from permanent significant limitation of use of her cervical spine based upon objective evidence and an examination conducted on January 3, 2000, 2 1/2 years after the subject accident.  The plaintiff had been involved in a prior automobile accident in 1994, and a subsequent automobile accident in 1998. The physician who treated the plaintiff for injuries allegedly sustained in the 1997 accident did not treat her for the injuries sustained in the 1994 accident.  The court held that, while a disc herniation may constitute a serious injury, the plaintiff's submissions failed to raise a triable issue of fact that the subject automobile accident was a proximate cause of the injuries.

 

ACROSS BORDERS

 

We regularly feature cases from other jurisdictions. This week we offer cases from California:

 

02/28/01:         BUENA VISTA MINES, INC. v. INDUSTRIAL INDEMNITY CO.

California Court of Appeal

Reading the Complaint in Totality Supports Insurer's Position that Claims Fall Outside Policy Period

An insurer must defend its insured against a third party suit when the complaint contains allegations, or the insurer becomes aware of facts, giving rise to potential coverage under the policy at issue.  A duty to defend arises if at least one claim in a complaint is potentially covered under the terms of the policy.  A claim is potentially covered only if the alleged harm occurred within the policy period.  Here, appellants' amended complaint shows on its face that the damages sought in the action were based on multiple violations of the Clean Water Act beginning on June 11, 1992, long after the insurance policies issued by respondents had expired.  The complaint in the action, in paragraphs 10 through 13, expressly identifies the dates of the alleged violations as occurring on or after June 11, 1992.  Although paragraph 14 does not reiterate the date of June 11, 1992, it is evident from a reading of the entire pleading that paragraph 14 includes the substantive allegations set forth in the preceding paragraphs in a summary fashion.

 

02/27/01:         VAN NESS v. BLUE CROSS OF CALIFORNIA

California Court of Appeal

Provisions in Health Insurance Limiting Benefits For Non-Participating Physicians Clear and Unambiguous and Enforceable

In 1991 appellant purchased health insurance from respondent Blue Cross of California under its prudent buyer program. That program established a two-tiered benefit schedule—the negotiated fee schedule for participating providers and the limited fee schedule for nonparticipating providers. Benefits under the negotiated fee schedule were greater because network providers agreed to cap their fees for Blue Cross subscribers. The appellant's treating physician was not part of the prudent buyer network. When the benefits Blue Cross paid for colonoscopy surgery amounted to just over one-third of his doctor’s actual fee, appellant sued Blue Cross asserting multiple causes of action. Court concludes that the Blue Cross policy and promotional materials were not ambiguous and did not support an objectively reasonable expectation that the insurer would pay enhanced benefits beyond those available under the limited fee schedule; nor did the limited fee schedule amount to an exclusion from coverage. Thus there is no legally cognizable basis to afford relief.

 

02/23/01:         ZURICH INS. CO. v. AMCOR SUNCLIPSE NORTH AMERICA

Seventh Circuit applying California and Illinois law

Zurich Wins One on "Advertising Injury" -- Solicitation of Customers Not Covered

The 7th Circuit recently affirmed the trial court's judgment in favor of Zurich in this case. This litigation involves a dispute as to the application of the policy's advertising and personal injury coverage.  The underlying case involved a dispute between Sunclipse and its customer Century Container Corporation. Century designed a coating for shipping boxes and containers used in the transport of electronic components and equipment.  Century alleged that Sunclipse breached the terms of the licensing agreement executed between Century and Sunclipse as to the manufacture and marketing of Century's product.

 

Century's claims were that 1) Sunclipse hired Robert Vermillion, a leader in the design of such coatings and a former Century employee, and as a result, Sunclipse was able to formulate a competing product; and 2) that Sunclipse sold its competing product to customers whose identities and needs were known to Sunclipse because of Sunclipse's work on behalf of Century (essentially Century alleged that Sunclipse stole Century's customer list).  With respect to Zurich, Sunclipse alleged that the misappropriation of customers constitutes the misappropriation of advertising ideas or style of doing business; and that the use of any rival's trade secrets constitutes an infringement of titles; and in the trial court level there was an allegation of product disparagement that was waived on appeal.

 

In a lengthy opinion that considers the relevant case law from around the country, the trial court determined that California law applied and ruled that Zurich's denial of coverage was valid.  In the appeal, the 7th Circuit considered the relevant California and Illinois law on the subject in reaching its finding that both of Sunclipse's arguments failed.

 

Specifically, the court found that solicitation of a competitor’s customers, regardless of how those customers were identified, did not constitute an infringement of title and that none of the allegations constitute advertising injury as the term is defined in the policy.

 

Prepared by Diana Kojelis with Zurich-American Insurance Group in Schaumburg, Illinois.

 

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REPORTED DECISIONS

PALMER v. ALIBERTI

 

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered January 11, 2000, which, to the extent appealed from as limited by the brief, denied plaintiff's motion for a default judgment against defendants-respondents and granted defendants -respondents’ cross motion to compel acceptance of their answer, unanimously affirmed, without costs.

 

Although defendants-respondents promptly forwarded the complaint to their insurance carrier, their carrier, by reason of internal confusion in its legal department during a period of departmental reorganization, did not timely refer the complaint to counsel. Accordingly, since there was a reasonable excuse for defendants-respondents’ evidently non-prejudicial two-month delay in answering, and their verified answer, submitted in support of their cross motion, sufficiently set forth the merits of their defense (see, Ganvey Merchandising Corp. v Knudsen El. Corp., 169 AD2d 518), plaintiff ’s motion for a default judgment was properly denied and defendants-respondents’ cross motion to compel acceptance of their answer was properly granted.

 

Sullivan, P.J., Nardelli, Williams, Tom, Friedman, JJ.

 

TRAVIS v. ALLSTATE INS. CO.

 

Order, Supreme Court, New York County (Paula Omansky, J.), entered November 24, 1999, which granted defendant’s motion for summary judgment dismissing the complaint , unanimously reversed, on the law, without costs or disbursements, the motion for summary judgment denied and the complaint reinstated.

 

In this action for wrongful refusal to pay an insurance claim, defendant moved to dismiss the cause of action for breach of contract on the ground that plaintiff failed to comply with the policy requirement that he submit a sworn proof of loss within 60 days of a demand therefor. Plaintiff maintained that defendant had led him to believe that it would not require strict compliance with the 60-day rule and argued that defendant had therefore waived this requirement and was estopped from enforcing it. The IAS court granted summary judgment, holding that plaintiff’s opposition to the motion – a memorandum of law without any supporting affidavit from plaintiff – was insufficient to defeat summary judgment since he had failed to set forth his allegations in evidentiary form. We reverse.

 

"A verified pleading is the equivalent of a responsive affidavit for purposes of a motion for summary judgment." (Hladczuk v Epstein, 98 AD2D 990; see also, CPLR 105[u].) Here, the amended verified complaint, verified by plaintiff, contained all of the factual allegations referred to in the memorandum of law and relied on to oppose defendant’s motion. (Cf., Arcadian Painting and Decorating Corp. v Helmer Cronin Const., Inc., 229 AD2D 896.)

 

Specifically, plaintiff alleged that, by separate letters dated December 6, 1996, defendant advised him of the requirement that he submit a sworn proof of loss within 60 days and asked him to appear for an examination under oath on January 7, 1997. On January 1, 1997, plaintiff broke his leg and telephoned defendant’s attorney to reschedule the examination. During that conversation, well within the 60-day period in which the proof of loss was required, plaintiff informed defendant’s counsel that he was having difficulty understanding the proof of loss form. After assuring plaintiff that the examination would be rescheduled, defendant ’s attorney advised plaintiff to bring the claim form to the examination and offered to help him fill it out at that time. Plaintiff further alleged that while the examination was thereafter adjourned for both parties’ convenience, this offer of assistance was not rescinded, nor was there any indication that submission of proof of loss was required prior to the adjourned date. Finally, in a letter dated April 11, 1997, after an examination set for April 9 had been canceled one day before it was to take place, defendant disclaimed coverage on the ground, inter alia, that he had not filed proof of loss within 60 days.

 

These factual averments are sufficient to create a question of fact as to whether defendant waived the 60-day time limit or should be estopped from asserting it. (See, Pedrick v Commercial Union Ins. Co., 132 AD2d 980.) In that case, defendant’s counsel told plaintiff to wait until all the items claimed to be lost in a burglary were valued before submitting proof of loss. In finding a question of fact as to waiver or estoppel, the court held that counsel "may have lulled [plaintiff] into believing that the proof of loss did not have to be submitted within a particular time." (Id .)

In arguing that it has not waived the proof of loss requirement, defendant mistakenly relies on the policy provision regarding "Coverage Changes," which provides that "the policy can be changed only by endorsement." This provision, by its own terms, relates to a " ;broaden[ing of] coverage." Conduct or statements on the part of defendant which waive a time limit do not come within the meaning of that provision.

 

Footnotes

 

1) The parties had previously stipulated that the remaining four causes of action be discontinued.

 

ALMAR, INC. v. UTICA MUTUAL INSURANCE COMPANY

 

In an action, inter alia, for judgment declaring that the defendant is obligated to defend the plaintiff in an underlying action entitled Kiley v Almar, Inc., pending in the Supreme Court, Suffolk County under Index. No. 25646/98, the defendant appeals from an order of the Supreme Court, Suffolk County (Dunn, J.), entered March 23, 2000, which granted the plaintiff's motion for partial summary judgment declaring that it is obligated to defend the plaintiff in the underlying action.

 

ORDERED that the order is affirmed, with costs.

 

The Supreme Court properly granted partial summary judgment to the plaintiff declaring that the defendant is obligated to defend it in an underlying action commenced by an employee who allegedly sustained injuries on the plaintiff's premises. The employee 's complaint contained allegations that she was injured while acting in the course of her employment. In its efforts to obtain a defense and/or indemnification from the defendant, the plaintiff made the defendant aware that the employee was not working at the time of the injuries, but rather, was visiting the premises as a customer. While the policy of insurance issued to the plaintiff by the defendant provides coverage for bodily injury, it excludes coverage for bodily injury to employees arising while in the course of their employment. The defendant disclaimed coverage based on the subject exclusion. The defendant claims that in reaching its decision to disclaim coverage it was required only to consider the allegations in the underlying complaint.

 

Since the "duty of an insurer to defend its insured arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim, or where the insurer 'has actual knowledge of facts establishing a reasonable possibility of coverage'" (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175, quoting Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65-67), the defendant could not ignore the information supplied by the plaintiff in assessing its duty to defend (see, Fitzpatrick v American Honda Motor Co., supra, at 70). The defendant offered no admissible evidence sufficient to raise a triable issue of fact to defeat the plaintiff's prima facie showing of entitlement to summary judgment as a matter of law on the issue of its duty to defend (see, CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562; Firemen's Ins. Co. of Washington, D.C. v 860 W. Tower, 2 46 AD2d 401). Accordingly, the Supreme Court properly granted the plaintiff's motion.

 

The defendant's remaining contentions are without merit.

 

MATTER OF NEW YORK CENTRAL MUTUAL FIRE INS. CO. v. JEDLICKA

 

In a proceeding pursuant to CPLR article 75, New York Central Mutual Fire Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated July 12, 1999, as granted that branch of the motion of Regina Jedlicka which was to vacate its demand for a trial de novo.

 

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

New York Central Mutual Fire Insurance Company (hereinafter New York Central), and Regina Jedlicka proceeded to arbitration on Jedlicka's claim for uninsured motorist benefits. On November 9, 1998, the arbitrator rendered his decision awarding Jedlicka $95,000. The decision was mailed to the parties on November 16, 1998. On January 13, 1999, New York Central served a demand for a trial de novo pursuant to the terms of Jedlicka's insurance policy which gave either party the right to a trial de novo if the amount awarded in arbitration exceeded the minimum limits for bodily injury liability required under the law of New York. If such a demand was not made "within 60 days of the arbitrators' decision", the amount of damages awarded in arbitration would be binding.

 

The Supreme Court correctly concluded that the New York Central's demand for a trial de novo was untimely as it was made more than 60 days after the arbitrator's decision (see, Matter of Abadinsky v Aetna Cas. & Sur. Co., 250 AD2d 6 73). Contrary to the New York Central's contention, the policy clearly and unambiguously provides that the 60-day period begins to run from the date of the decision, not from the date the decision was served . Nor was the New York Central entitled to an additional five days to make its demand pursuant to CPLR 2103(b)(2). That statute is applicable to service of papers in a pending action "where a period of time prescribed by law is measured from the service of a paper and service is by mail" (CPLR 2103[b][2]), which is not the situation here.

 

In light of our determination that the demand was untimely, it is unnecessary to address the parties' remaining contentions.

 

O'BRIEN, J.P. , RITTER, ALTMAN and SCHMIDT, JJ., concur.

 

ASTA v. EIVERS

 

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Burke , J.), dated April 25, 2000, as granted that branch of the motion of defendant Patrick Eivers which was for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff Maryann Asta did not sustain a serious injury within the meaning of Insurance Law § 51 02(d), and granted the separate motion of the defendant Brian Games for summary judgment dismissing the complaint insofar as asserted against him on the same ground.

 

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, that branch of the motion of the defendant Patrick Eivers which was for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff Maryann Asta did not sustain a serious injury within the meaning of Insurance Law 5102(d) is denied, the motion of the defendant Brian Games is denied, and the complaint is reinstated.

 

In support of their respective motions for summary judgment , the defendants submitted, inter alia, the affirmed medical report of an independent examining neurologist which referred to a magnetic resonance imaging report of the plaintiff Maryann Asta's cervical spine dated eight months after the accident. The medical report revealed, inter alia, diffuse disc bulging in the cervical spine. The neurologist further found that the injured plaintiff's neck had "decreased range of movements to extension". A bulging disc may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Langford v Jewett Transp. Serv., 271 AD2d 412). The defendants failed to demonstrate that the bulging discs were not causally related to the subject accident (see, Chaplin v Taylor, 273 AD2d 188). Accordingly, the defendants failed to establish a prima facie case for judgment as a matter of law (see, Langford v Jewett Transp. Serv. supra; Faruque v Ponce, 259 AD2d 464; Rosmarin v Lamontanaro, 238 AD2d 567; Mariaca-Olmos v Mizrhy, 226 AD2d 437).

 

RITTER, J. P., KRAUSMAN, FLORIO and FEUERSTEIN, JJ., concur.

 

DAILY NEWS, LP v. OCS SECURITY, INC.

 

In an action, inter alia, for a judgment declaring that the defendant American Modern Home Insurance Company is obligated to defend and indemnify the plaintiffs Daily News , LP, and Plant Partners, LP, in an action entitled Morley v Daily News, pending in the Supreme Court , Kings County, under Index No. 29766/96, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated July 7, 1999, as denied those branches of their motion which were for summary judgment declaring that the defendant American Modern Home Insurance Company is obligated to indemnify the plaintiffs Daily News, LP, and Plant Partners, LP, in the underlying personal injury action, and that the defendant OCS Security, Inc., breached its contract to purchase insurance naming the plaintiffs Daily News, LP, and Plant Partners, LP, as additional insureds, and the defendants cross -appeal from stated portions of the same order.

 

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

 

ORDERED that the order is modified , on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment declaring that American Modern Home Insurance Company is obligated to indemnify the plaintiffs Daily News, LP, and Plant Partners, LP, in the action entitled Morley v Daily News, pending in the Supreme Court, Kings County, under Index No. 29766/96, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court , Kings County, for the entry of an appropriate judgment; and it is further,

 

ORDERED that the plaintiffs are awarded one bill of costs.

 

The Supreme Court properly determined that American Modern Home Insurance Company (hereinafter AMHICO) was obligated to defend the plaintiffs Daily News, LP (hereinafter the Daily News), and Plant Partners, LP (hereinafter Plant Partners ), pursuant to the insurance policy issued by AMHICO to the defendant OCS Security, Inc. (hereinafter OCS) which named the Daily News as an "additional insured", but only "with respect to their liability arising out of 'your work' for that insured by or for you". "Your work" was defined as "[w]ork or operations performed by you or on your [be]half" and "[m]aterials, parts or equipment furnished in connection with such work or operations".

 

The injured plaintiff in the underlying personal injury action, a visitor to the Daily News facility, was injured when he was struck by a descending elevator door operated by an employee of OCS while on his lunch break. The Daily News had hired OCS to provide security guard services at its facility. Although the OCS employee was on his lunch break when the accident occurred, because his work necessarily required him to use the elevator to perform his job and to reach and leave his workplace, the injuries in the underlying action arose out of the work performed by OCS for the Daily News (see, O'Connor v Serge Elevator Co., 58 NY2d 655). Thus, pursuant to the endorsement in the policy, the Daily News and Plant Partners are entitled to indemnity from AMHICO.

 

In light of our determination, we need not reach the plaintiffs' remaining contention.

 

RITTER , J.P., KRAUSMAN, McGINITY and SMITH, JJ., concur.

 

FINKELSHTEYN v. HARRIS

 

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated May 1, 2000, as granted that branch of the plaintiff 's motion which was for reargument of their prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102, which was granted by order of the same court dated March 6, 2000, and, upon reargument, denied their motion.

 

ORDERED that the order is modified, on the law, by deleting the provision thereof which, upon reargument, denied the defendants' motion for summary judgment and substituting therefor a provision adhering to the prior determination granting that motion; as so modified , the order is affirmed insofar as appealed from, with costs to the defendants, and the complaint is dismissed.

 

The defendants established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject automobile accident on July 10, 1997. The plaintiff was involved in a prior automobile accident in February 1994, and a subsequent automobile accident in December 1998. The physician who treated the plaintiff for injuries allegedly sustained in the subject accident did not treat her for the injuries she allegedly sustained in the accident that occurred in 1994. In opposition to the motion for summary judgment, the plaintiff submitted an affirmation of the physician who treated her as a result of the subject accident . That physician stated that the plaintiff was suffering from, inter alia, a specified permanent significant limitation of use of her cervical spine based upon objective evidence and an examination conducted on January 3, 2000, 2 1/2 years after the subject accident.

 

While a disc herniation may constitute a serious injury (see, Flanagan v Hoeg, 212 AD2d 756), under the circumstances of this case , the plaintiff's submissions failed to raise a triable issue of fact that the subject automobile accident was a proximate cause of the alleged injuries (see, Alcalay v Town of N. Hempstead, 262 AD2d 258; Khodadadian v Wolff, 242 AD2d 681; Cacaccio v Martin, 235 AD2d 384; Waaland v Weiss, 228 AD2d 435).

 

In light of our determination, we do not reach the remaining issue.

 

SANTUCCI, J.P., ALTMAN, LUCIANO and H. MILLER, JJ., concur.

 

MASSEY v SHE SHANG JUNG

 

In an action to recover damages for personal injuries , etc., the defendant appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered April 14, 2000, which denied his motion for summary judgment dismissing the complaint.

 

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 

The defendant established a prima facie case that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v Eyler , 79 NY2d 955).

The medical affidavit prepared by the infant plaintiff's examining orthopedist in opposition to the motion failed to raise a triable issue of fact as to whether the infant plaintiff sustained a serious injury. The examining orthopedist failed to explain the nature of the infant plaintiff's medical treatment, and did not explain the 4 1/2-year gap between the infant plaintiff 's initial treatments by a neurologist and her visit to the examining orthopedist (see, Goldin v Lee, 275 AD2d 341; Smith v Askew, 264 AD2d 834; Decayette v Kreger Truck Renting, 260 AD2d 342; Williams v Ciaramella, 250 AD2d 763).

 

SANTUCCI, J.P., ALTMAN, LUCIANO and H. MILLER, JJ., concur.

 

NEW YORK CENTRAL MUTUAL FIRE INS. CO., a/s/o MAXWELL v. TURNERSON'S ELECTRIC, INC.

 

In a subrogation action to recover the proceeds of a fire insurance policy, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated February 22, 2000, as granted those branches of the respective motions of the defendants Turnerson's Electric, Inc., West Putnam Electric Corp., s/h/a West Putnam Electric , and David Tedesco, which were for summary judgment dismissing the complaint insofar as asserted against them.

 

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

 

On January 22, 1992, a house owned by the plaintiff's insured was destroyed by fire. The house was so extensively damaged that the Putnam County Bureau of Fire was unable to determine the cause of the fire . Shortly after the fire, the plaintiff hired a private investigator to conduct an investigation. The investigator, who had no formal education beyond high school and limited training in the area of fire analysis, issued two reports concluding that the fire was electrical in nature. During the course of his inquiry, the investigator removed an electric circuit panel box from the scene of the fire in order to further examine it. However, acting on instructions from a claims adjuster employed by the plaintiff , the investigator later destroyed the circuit panel. Based upon the investigator's opinion that the fire was electrical in origin, the plaintiff thereafter commenced this action against the defendants, contending, inter alia, that they had negligently performed electrical work in the residence. After conducting discovery, the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them on the ground of spoliation of evidence, or on the alternative ground that there was no evidence that their acts or omissions were a proximate cause of the fire. The Supreme Court dismissed the complaint because of the plaintiff's intentional destruction of the circuit panel, and did not reach the defendants' alternative ground for summary judgment.

 

Contrary to the plaintiff 's contention, the Supreme Court properly concluded that the defendants were entitled to summary judgment dismissing the complaint on the ground of spoliation of evidence. Where, as here, a party destroys key physical evidence "such that its opponents are 'prejudicially bereft of appropriate means to confront a claim with incisive evidence'", the spoliator may be punished by the striking of its pleading (DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41, 53, quoting Kirkland v New York City Hous. Auth., 236 AD2d 170, 174). The sanction of striking a pleading may be applied "even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation" (DiDomenico v C & S Aeromatick Supplies, supra, at 53). The plaintiff intentionally ordered the destruction of the circuit panel in the course of gathering evidence for a potential subrogation action, and the defendants have been prejudiced by the destruction of this key item of physical evidence . Accordingly, dismissal of the plaintiff's complaint was an appropriate remedy (see, Roman v North Shore Orthopedic Assn., 271 AD2d 669; Puccia v Farley, 261 AD2d 83; DiDomenico v C & S Aeromatick Supplies , supra; cf., Romano v Scalia and DeLucia Plumbing, AD2d [decided herewith]).

 

We further note that the defendants established their entitlement to summary judgment on the alternative ground that there was no evidence that their acts or omissions were a proximate cause of the fire. The defendants submitted evidence that the Putnam County Bureau of Fire was unable to determine the cause of the fire, and that there are competing inferences as to its origin (see, Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449). In opposition to the motion, the plaintiff relied upon the reports of its private investigator, which were unsworn and did not indicate that he had the education and experience to qualify as an expert in the area of fire investigation. These reports were insufficient to raise a triable issue of fact and defeat the defendants' motions for summary judgment (see, Mittendorf v Brooklyn Union Gas Co., supra; Hagan v General Motors Corp., 194 AD2d 766).

 

SANTUCCI, J.P., KRAUSMAN, S. MILLER and SMITH, JJ., concur.