Coverage Pointers - Volume IX, No. 1

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Dear Coverage Pointers Subscribers,

 

We are delighted to begin our NINTH year of continuous service of Coverage Pointers with Volume IX, No. 1.  We hope that we continue to provide you with what you need in insurance coverage commentary, sprinkled with a touch of humor and laced with common sense.  Tomorrow also represents my 30th anniversary with Hurwitz & Fine, P.C.  It's a week for anniversaries; ask the French who celebrate their 218th anniversary tomorrow as well.

 

Pardon the lack of creativity this morning, we all have those days.

 

We welcomed Tasha Dandridge to our office as a new associate who will be working in our trial and litigation area.  A graduate of the Buffalo Law School, she worked in Buffalo after graduate for an insurance defense firm, and then migrated to New York City where she did the same kind of work.  She has now returned to her home town and we're delighted to have her with us.

 

You'll find a legislative update in our issue this week and for those who are waiting for the insurance legislation discussed in the previous issue to be signed and take effect, you'll have to wait a little longer.  The bill has not yet been sent to the Governor for signature.  You will find a summary of a couple of new law dealing with service of the trial subpoena, allowing, for example, a plaintiff to serve a subpoena on an attorney of record to compel production of an out-of-state party witness.  Not happy about that one.

 

The appellate judges are taking their early summer siestas and as we see every July and August, there is a down-tick in the number of reported decisions.  Until the last couple of days, there wasn't a single non-serious injury insurance case to discuss but thankfully a couple of interesting ones were rendered mid-week.

 

Legislative Update

 

  • Senate Bill 6306 (Prejudice and standing in DJ actions)
·    Chapter 185 of the Laws of 2007 (Motion practice)
·    Chapter 192 of the Laws of 2007 (Subpoena service)
  • Chapter 205 of the Laws of 2007 (Penalty for disobeying subpoena)

 

Insurance Decisions

  • Since Insured Provided Untimely Notice to Broker, E&O Claim Against Broker, for Failing to Purchase Proper Policy, is Dismissed
  • One Bite at the Apple 

STarosieleC'S serious (Injury) Side of New York No-FaulT
Mark Starosielec
[email protected]

 

  • Strong Suspicions and Subjective Reports Are Not Enough for Plaintiffs to Meet Their Burden of Raising a Triable Issue of Fact
  • Plaintiff's Chiropractor's Affidavit Enough to Raise Triable Issue of Fact
  • Plaintiff Survives SJ as Defendant's Docs Fail to Address Plaintiff's Diagnostic Reports
  • Reversed: Issues of Fact Regarding Serious Injury and Negligence Keeps Lawsuit Alive
  • An Expert Not Being a Specialist, Goes to the Weight, not Admissibility, of Report
  • Plaintiff's Failure to Disclose Preexisting Injury Leads to Complaint Dismissal
  • How NOT to Raise a Triable Issue of Fact: Let Me Count The Ways
  • Plaintiff Survives Summary Judgment As Defendant's Doctor Finds Limitations in Plaintiffs' Range of Motion
  • What's Normal?  Defendants' Doctor's Failure to Relate Plaintiff's Pain Dooms SJ Motion

 

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]

 

  • Applicant not Entitled to Lost Wages as Result of Second Accident Since Application for Benefits not Completed Regarding Lost Wages.
  • Applicant's Acceptable of Unemployment Benefits Rendered Him Ready, Willing, and Able to Work; Applicant's Acceptance of Social Security Retirement Benefits Result in Voluntarily Taking Himself out of Workforce.
  • Insurer Prevails on Failure to Cooperate with Vocational Rehabilitation Efforts Defense.
 

PEIPER on PROPERTY

Steven E. Peiper

[email protected]

 

  • Insured is Presumed to know what is Covered under his Policy, and Likewise what has been Removed by the Plain Terms of the Insuring Contract.
  • Inter-Company Arbitration Decision does not Preclude the Parties from Litigating Issues of Negligence which were not part of the Original Arbitration

From Audrey, the Queen of No Fault, I bring you these words:

 

This week's column is all about lost wages. We have arbitration decisions regarding lack of inclusion in coverage to failure to comply with vocational rehabilitation efforts.  One decision to review and ponder is the first arbitration decision regarding whether an applicant for no-fault benefits who never indicates a lost wage claim on the no-fault application, is found to be disabled before the accident, oh and I almost forgot unemployed, is owed a denial and a timely one at that.  My take on the issue is that it encompasses a fundamental insurance coverage issue of whether the claim even falls within the insuring grant.  Therefore, a denial and a timely one at that would not be required.  I would welcome further discussion on the issue...

 

Audrey Seeley

 

Next issue will come to you from Sun Valley, Idaho, where I will be concluding my term as President of the Federation of Defense & Corporate Counsel.  Thanks for all your support, patience and understanding these past two years, as President-Elect and President, as I have traveled near and far on behalf of defense counsel, insurance carriers and our corporate membership.  It's been a great professional experience. 

 

There'll be more time for visits to your office for training programs.  Here are a few suggested topics.  Let us know how we can help:

      1. Primary and Excess Insurance - Rights & Responsibilities
      2. SUM Claims Handling
      3. Preventing Bad Faith Claims - First Party Cases
      4. Preventing Bad Faith Claims - Liability Cases
      5. Late Notice - How to Handle and the Impact of New Legislation in New York
      6. The Cooperation Clause - How to Handle
      7. NY Disclaimer Letter - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)
      8. No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal 
      9. No Fault Regs - Knowledge is Power
      10. An Auto Liability Policy Primer
      11. A CGL Policy Primer
      12. A Homeowners Liability Policy Primer
      13. EUO's Under First Party Policies
      14. How to Resolve Coverage Disputes:  DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)
      15. Insured Selected Counsel: When is it Necessary and How to Avoid it? 
      16. Mediation and the Role of the Mediator
      17. ADR and How to Get to "Yes".
      18. The Internet as a Tool for the Claims Representative
      19. Construction Cases - The Interplay Between Indemnity Agreements and Insurance Policies
      20. Other Insurance, Additional Insureds and Priority of Coverage

That's all for now.  See you in a couple of weeks.

 

Dan

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

 

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

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

Fire, First-Party and Subrogation Team
Andrea Schillaci, Team Leader
[email protected]

Jody E. Briandi
Steven E. Peiper

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

APPELLATE TEAM
Dan D. Kohane
Scott M. Duquin

 

Index to Special Columns

 

Starosielec’s Serious Side of “Serious Injury”

 Audrey’s Angles on No Fault

Peiper on Property

Across Borders

 

 

Legislative Update

 

Senate Bill 6306, the insurance amendment discussed last issue (dealing with the requirement of a liability carrier to demonstrate prejudice before denying coverage as a result of late notice of claim and creating a right for a injured party to commence a DJ action) has passed both houses of the New York State Legislature.  It has not yet been sent to the Governor for signature.  It is not unusual, at the end of the legislative session, for the Senate and the Assembly to send bills to the Governor over a period of weeks, to allow consideration in a timely manner.

 

Chapter 185 of the Laws of 2007, effective immediately, changes the timing for service of motion papers, to allow more time to receive and respond to cross-motions.
 
Chapter 192 of the Laws of 2007, effective January 1, 2008, provides a pretty significant change in subpoena practice in the trial setting.  It allows service of a trial
 subpoena on a party or a person within the party’s control by delivery of the trial subpoena to the party’s attorney of record. The sponsor’s memorandum notes that 
under existing case law, the attendance of a party’s employee located outside of New York State, can be compelled by the service of a subpoena on the employer within 
the state.  This provision allows service of that subpoena to be accomplished merely by serving the attorney of record with the subpoena and statutory fee.
 

Chapter 205 of the Laws of 2007, effective January 1, 2008, raised the penalty for disobedience of a subpoena from $50 to $150.

 

7/12/07            US Pack Network Corp. v. Travelers Property Casualty

Appellate Division, First Department

Since Insured Provided Untimely Notice to Broker, E&O Claim Against Broker, for Failing to Purchase Proper Policy, is Dismissed
In an earlier appeal, reported here in November 2005, this Court affirmed a determination that plaintiff had failed to give the requisite prompt notice of the claimed losses to its insurance broker:

 

11/22/05          US Pack Network Corp. v. Travelers Property Casualty
Appellate Division, First Department
“Prompt,” Means Prompt – Isn’t that Clear?
The property policy required that notice of any loss be "prompt," and the undisputed record shows that the insurer did not receive written notice of plaintiffs' two losses until six and fifteen months after they occurred. Insured’s claim that the word "prompt" is ambiguous is rejected and notice was not “prompt.” The insured’s president asserts that he "verbally notified" defendant broker, allegedly the insurer's agent, "shortly after each loss." This fails to raise a bona fide issue of fact as to whether there was prompt notice. The phrase "shortly after" is for present purposes too vague to be a workable approximation of time, and no specifics are provided as to the identity of the person with whom plaintiffs' president spoke.

Now, there is a lawsuit against the broker claiming that the broker failed to obtain a policy that would provide the insured with the coverage it wished.  Court tosses out that lawsuit as well – clearly, even if the proper policy had been purchased, the notice given was late so there wouldn’t have been coverage available anyway!

7/12/07            American Guar. & Liab. Ins. Co. v CNA Reins. Co., Ltd.
Appellate Division, First Department
One Bite at the Apple
P
laintiff sought statutory interest on the amount it recovered in litigation as well as interest on the amount it paid for defense costs.  However, the issue was previously determined by the Court in the previous litigation and determined.  It cannot be litigated again.

 

STarosieleC’S serious (Injury) Side of New York No-FaulT
Mark Starosielec
[email protected]

 

7/12/07            Flisch v. Walters

Appellate Division, Third Department

Strong Suspicions and Subjective Reports Are Not Enough for Plaintiffs to Meet Their Burden of Raising a Triable Issue of Fact

The Appellate Division granted defendants’ summary judgment motion after they appealed a lower court order which had denied its motion. In deciding to reverse the lower court order, the Appellate Division first held the defendants met its prima facie burden of proof. In response, the plaintiffs were not able to raise a triable issue of fact. 

Defendants relied on a neurologist who stated that although plaintiff sustained a “significant head injury” with contusions and an epidural hematoma, these conditions subsequently resolved and an IME conducted two years later revealed no objective signs of neurological dysfunction. He also opined that plaintiff’s current subjective complaints, such as headaches, could not be connected to any objective findings.

As for plaintiffs’ effort to meet their own burden to raise a triable question of fact, the evaluations performed by plaintiff’s treating nurse practitioner are of limited value because she does not identify any diagnostic tests performed or show that her findings are based on anything other than plaintiff’s and her parents’ subjective reports of headaches, dizziness and mood swings. The report by a consulting neurologist confirms none of the nurse practitioner’s opinions and merely expresses “a strong suspicion that ‘difficulty putting [plaintiff's] finger on her nose’ could certainly be related to the motor vehicle accident.” Neither discusses any degree of significant impairment or permanency, nor is there any qualitative analysis of how plaintiff’s alleged limitations compare to normal neurological functioning. Additionally, neither expert disputes defendants’ expert’s opinion that plaintiff’s hematoma subsequently resolved without any residual neurologic deficit and an MRI performed less than two months after the accident was normal.

7/10/07            Green v. Nara Car & Limo, Inc.

Appellate Division, Second Department

Plaintiff’s Chiropractor’s Affidavit Enough to Raise Triable Issue of Fact

Appellate Division affirmed a lower court order which had denied defendants’ summary judgment motion seeking dismissal of plaintiff’s complaint. On their motion, the defendants established prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff raised a triable issue of fact. The affidavit of the plaintiff's treating chiropractor raised a triable issue of fact as to whether the plaintiff sustained a serious injury to his lumbar spine under either the permanent consequential or significant limitation of use categories of Insurance Law § 5102(d). The plaintiff’s treating chiropractor opined in his affidavit, based on his contemporaneous and recent examinations of plaintiff, as well as upon his review of the plaintiff's lumbar MRI report that the plaintiff’s lumbar injuries and range of motion limitations observed were permanent and causally related to the subject accident.

 

7/10/07            Hoxha v. McEachern

Appellate Division, Second Department

Plaintiff Survives SJ as Defendant’s Docs Fail to Address Plaintiff’s Diagnostic Reports

The Appellate Division affirmed lower court order denying defendants’ summary judgment motion. Moreover, the defendants failed to establish, prima facie, that the plaintiff did not sustain “a medically determined injury or impairment of a non-permanent nature which prevent[ed] [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” (Insurance Law § 5102[d]). The defendants’ claims that the plaintiff’s injuries were the result of her “subjective complaints” and that any restriction in her daily activities "was of her own volition" were unsupported by any competent evidence. The defendants’ neurological expert, who reviewed the diagnostic test reports generated in the days and weeks following the subject accident, offered no opinion as to the nature, seriousness, or potential cause of any condition or finding. Consequently, the defendants failed to make out a prima facie case with respect to the plaintiff’s claim of serious injury based on the 90/180 day category.

 

7/10/07            Jin v. Kwon

Appellate Division, Second Department

Reversed: Issues of Fact Regarding Serious Injury and Negligence Keeps Lawsuit Alive Plaintiffs in school bus accident survive summary judgment for various reasons.  Here, the plaintiffs were passengers in a vehicle owned and operated by the defendant Kwon, when that vehicle was involved in a collision with a school bus owned by the defendant Little Richie and operated by the defendant Ramsawak. Defendants moved for summary judgment on the grounds that they were not at fault in causing the collision, and that the injured plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The Appellate Division held that the evidence submitted by all of the defendants failed to establish their entitlement to judgment as a matter of law. While the affirmed report of the defendants’ orthopedist stated that the plaintiff Han’s range of forward flexion was 65 degrees, it failed to compare that measurement to the normal range of forward flexion. In fact, the report appeared to indicate that her range of forward flexion was less than normal. The proof submitted by other defendants in support of their motion on the ground that they were not at fault in causing the accident, revealed the existence of a triable issue of fact as to whether or not Ramsawak was negligent in the operation of the school bus owned by Little Richie. Accordingly, those defendants failed to establish their entitlement to judgment as a matter of law in that regard, and that branch of their motion should have been denied.   

7/6/07              Harris v. Carella

Appellate Division, Fourth Department

An Expert Not Being a Specialist, Goes to the Weight, not Admissibility, of Report

Defendants’ appeal of lower court order was somewhat successful as the Appellate Division modified a lower court order which had denied defendants’ summary judgment motion in its entirety. On appeal, the Appellate Division held the order was modified and granted defendants’ motion with respect to the permanent loss of use of a body organ, member, function or system, fracture and significant disfigurement categories of serious injury within the meaning of Insurance Law § 5102 (d).The plaintiffs’ complaint alleges that plaintiff sustained a serious injury within the meaning of six categories of Insurance Law § 5102 (d). The Appellate Division concluded that the court should have granted the motion with respect to three of the five remaining categories, after defendants had failed to address the 90/180 category, at which point the court considered it abandoned.

With respect to the permanent consequential limitation of use and significant limitation of use categories, the Appellate Division agreed with defendant that the court erred in refusing to consider the affidavit of a physician who examined plaintiff on defendant’s behalf based on the court’s determination that the affidavit was inadequate. The expert’s affidavit establishes that the examining physician is licensed to practice medicine in this state, and "the fact that a physician [is] not a specialist in a particular area generally goes to the weight to be given the expert['s affidavit] and not its admissibility". Nevertheless, plaintiffs raised an issue of fact with respect to those categories. In opposition to defendant’s motion, plaintiffs submitted the affidavit of plaintiff’s treating chiropractor, who stated that plaintiff had a loss of lordosis in his cervical spine, muscle spasms, and a loss of range of motion in his cervical and lumbar spine. The chiropractor also stated that plaintiff’s injury was significant, permanent, and causally related to the accident, thus raising a triable issue of fact.

However the court erred in denying those parts of her motion with respect to the three remaining categories of serious injury. Defendant submitted evidence establishing that plaintiff had some use of his spine. Thus, defendant’s motion should have been granted with respect to the permanent loss of use category. Defendant also established that plaintiff did not sustain a fracture in the accident, and plaintiff failed to raise a triable issue of fact in opposition. Finally, defendant submitted evidence establishing that plaintiff did not sustain a significant disfigurement and plaintiffs failed to address that category in opposition to defendant's motion.

 

7/6/07              Cummings v. Jiayan Gu

Appellate Division, Fourth Department

Plaintiff’s Failure to Disclose Preexisting Injury Leads to Complaint Dismissal

Plaintiff’s failure to inform his own physicians that he had prior significant neck injuries helped convince the Appellate Division to rule the lower court properly denied plaintiffs’ motion for a directed verdict on the issue of serious injury. Plaintiffs commenced this action following a rear-end motor vehicle accident. The jury had returned a verdict finding that plaintiff did not sustain a serious injury. Plaintiffs alleged that plaintiff sustained a serious injury under: (1) the permanent consequential limitation of use: (2) significant limitation of use and (3) 90/180 categories. Addressing first the 90/180 category, there was abundant evidence that plaintiff’s activities were curtailed to a great degree after the accident. Plaintiffs failed to present any “objective medical evidence to establish a qualifying injury or impairment.”  Further, plaintiffs presented no testimony that plaintiff’s physicians placed restrictions on his activities or that the injuries caused by the accident resulted in the curtailment of those activities.

Regarding the remaining two categories, plaintiffs presented the testimony of two physicians, each of whom testified that plaintiff's initial MRI revealed a disc herniation that was caused by the accident. Neither physician testified that plaintiff was required to undergo fusion surgery as a result of the disc herniation. One of the physicians admitted that plaintiff did not inform the physician that he had prior significant neck injuries. According to that physician, such information would have been helpful in making a prognosis.

Further, the Appellate Division rejected plaintiffs’ contention that the verdict is against the weight of the evidence as the jury found that plaintiff did not sustain a serious injury. “A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence.” (Jaquay v Avery, 244 AD2d 730, 730-731; see Lolik v Big V Supermarkets, 86 NY2d 744, 746). A jury is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination . . . Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion.

6/26/07            Ali v Mirshah

Appellate Division, Second Department

How NOT to Raise a Triable Issue of Fact: Let Me Count The Ways

Not only did the Appellate Division reverse a lower court order which had denied defendants’ summary judgment motion, its opinion provided a text book example to the plaintiffs bar on how not to raise a triable issue of fact. Here, a lower court had denied defendants’ cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Appellate Division held the defendants met their prima facie burden of establishing that the plaintiff did not sustain a serious injury.

 

In opposition, the plaintiff failed to raise a triable issue of fact. Plaintiff failed to submit objective medical evidence based upon a recent examination. Plaintiff’s treating chiropractor’s conclusions were based on an examination that took place only six days after the accident, and were not based on a recent examination. The conclusions also relied on the unsworn reports of others. Further, plaintiff’s MRI reports were without probative value since they were unaffirmed. Additionally, plaintiff’s remaining submissions, including his affidavit and medical billing information, did not constitute admissible objective evidence of a serious injury.

 

 

6/26/07            Tavarez v Jackson

Appellate Division, Second Department

Plaintiff Survives Summary Judgment As Defendant’s Doctor Finds Limitations in Plaintiffs’ Range of Motion

Defendant appealed a lower court order which denied summary judgment which would have dismissed the complaint on the ground that they did not sustain a serious injury within the meaning of Insurance Law § 5102(d). On appeal, the order was affirmed by the Appellate Division. Defendant failed to make a prima facie showing that neither plaintiff sustained a serious injury. The affirmed reports of the defendant’s examining neurologist disclose that he found limitations in cervical range of motion in both plaintiffs.

 

6/26/07            Valdes v Timberger

Appellate Division, Second Department

What’s Normal?  Defendants’ Doctor’s Failure to Relate Plaintiff’s Pain Dooms SJ Motion

In another brief opinion, the Appellate Division reversed a lower court order which had granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Here, the Appellate Division held the defendants failed to establish their prima facie entitlement to judgment as a matter of law. Defendants’ orthopedist noted that the plaintiff had radiating pain down the left leg, and straight leg raising was “equivocally positive at 80 degrees on the left side,” without stating what was normal. Further, he claimed that a physical examination of the plaintiff’s lumbar and cervical spine revealed “a full range of motion in all directions” without setting forth the objective test or tests performed.

 

Audrey’s Angle on No-Fault

Audrey Seeley

[email protected]

 

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

 

Arbitration

 

7/5/07              In the Matter of the Arbitration of the Applicant and the Respondent

                        Arbitrator Thomas J. McCorry, Erie County

Applicant not Entitled to Lost Wages as Result of Second Accident Since Application for Benefits not Completed Regarding Lost Wages.

 

The Angle:    Okay, I appear in front of Arbitrator McCorry often and disclose that I have a great deal of respect for him.  However, this is a case where I think reasonable minds just simply differ.  In this case the Applicant was involved in two motor vehicle accidents approximately two years apart.  The Applicant was disabled and unemployed as a result of the first accident up until the time of the second accident.  The Applicant seeks lost wages as a result of the second accident in this arbitration but her application for benefits never provides any information that she is seeking lost wages.  The insurer never issues a denial and argues at the arbitration it was not required to issue a denial or a timely denial because there is no insurance coverage in the first instance.  The defense as articulated to Arbitrator McCorry is noted in the decision as being “clear lack of coverage defense.”  Yet, it seems that the argument is centered on the claim not falling within the grant of insurance coverage.  Despite this, it is determined that a timely denial must be issued in this case.

 

As I see it, the issue is whether the Applicant fell within the insuring grant of the PIP endorsement under the insurance policy.  If the claim for lost wages does not fall within coverage no denial need be issued timely.  By the way, we recently saw a similar analysis with the same outcome as Arbitrator McCorry in the Fair Price case (reported in last edition).  This case is a bit different in that the argument here is that the claim for lost wages does not fall within coverage.  The insuring grant, and I am paraphrasing, provides lost wage benefits as a result of personal injuries that the applicant sustained as a result of the motor vehicle accident which rendered her unable to perform her job.  Here, the Applicant was not even employed at the time of the second accident and the evidence indicated that she was not rendered unable to perform her job due to injuries from the second accident.  Accordingly, she does not fall within the grant of coverage.   There is no exclusionary language to rely upon or breach of policy condition which would require a written, timely denial.

 

Alright, with that said, the insurer could simply issue a timely denial to any claim if there is a doubt whether a denial is required.  Of course, here it was difficult to know that the Applicant was making a lost wage claim in light of the absence of any lost wage information on the no-fault application.

 

 The Analysis: The Applicant, eligible injured person, was involved in an October 1999 and a February 2001, motor vehicle accident.  The Applicant was considered disabled and was receiving lost wage benefits as a result of the October 1999 accident up until the time of the February 2001 accident.  In addition, the Applicant was terminated from her employment in October 2000 due to her failure to return to work in two years.  The Applicant was also receiving Social Security Disability benefits as a result of the October 1999 accident.

 

Despite this, Applicant sought lost wage benefits as a result of the February 2001 accident based upon a purported opinion from her treating surgeon, Dr. Huckell, that she would be cleared to return to work in January 2001.  Dr. Huckell’s report did indicate a contemplated January 2001 return to work but also indicated that Applicant was totally disabled as a result of the October 1999 accident.

 

Arbitrator McCorry determined that Applicant was not only disabled but unemployed by the time of the February 2001 accident due to injuries sustained in the October 1999 accident.

 

The issue then became whether the insurer was precluded from denying lost wage benefits as a result of the February 2001 accident in light of the insurer’s failure to issue a denial.  Interestingly, the Applicant’s application for no-fault benefits provided that she denied having lost time from work as a result of the February 2001 accident.  Also, the dates of absence from work, average weekly earnings, and amount of hours worked per week were blank on the application.  Arbitrator McCorry found that Applicant failed to submit a proper lost wage claim based upon the application and as a result he could not render an award in Applicant’s favor.

 

Of further interest, is Arbitrator McCorry’s discussion regarding the insurer’s argument that since this claim for lost wages did not fall within the grant of coverage under the policy no timely denial was required.  Arbitrator McCorry rejected this argument and distinguished this case from Chubb reasoning that here there was coverage for the motor vehicle involved and the Applicant.  Instead Arbitrator McCorry states that the question was whether the Applicant’s unemployment at the time of the February 2001 accident triggered coverage or excluded coverage. 

 

7/2/07              In the Matter of the Arbitration of the Applicant and the Respondent

Arbitrator Mary Anne Theiss, Onondaga County

Applicant’s Acceptable of Unemployment Benefits Rendered Him Ready, Willing, and Able to Work; Applicant’s Acceptance of Social Security Retirement Benefits Result in Voluntarily Taking Himself out of Workforce.

 

The Angle:      The Applicant in this case was deemed able to work light duty by not only his treating physician but also the IME physician.  The Applicant’s acceptance of unemployment benefits prior to his retirement at 65 years of age was found to demonstrate him as ready, willing, and able to work.  Therefore, he was not entitled to lost wages.  Likewise, the Applicant’s acceptable of Social Security Retirement benefits upon reaching 65 years of age also demonstrated that he took himself out of the workforce due to natural retirement thereby not entitling him to lost wages.

 

The Analysis:  The 62 year old Applicant, eligible injured person, sought lost wages as a result of an October 24, 2003, motor vehicle accident.  The Applicant received lost wage benefits from November 12, 2003 until May 15, 2004.  The Applicant was determined by an independent medical examination on May 3, 2004 to be able to return to light duty as a truck driver and employee in the Eckerd Drug photography department.

 

On June 22, 2004, the Applicant’s treating physician also opined that he could return to work light duty.

 

The Applicant also attempted to work light duty when the Teamsters Union could find the work for him.  Also, the Applicant received unemployment benefits from July 2004 through September 2004.  Arbitrator Theiss determined that this demonstrated that the Applicant was ready, willing, and able to work.

 

In February 2005, the Applicant retired and began collecting Social Security Retirement benefits.  Arbitrator Theiss also determined that the Applicant apparently took himself out of the workforce by collecting the benefits. 

 

Ultimately, the Applicant was awarded one month of lost wages for June 2004 when he was not receiving unemployment benefits.

 

6/29/07            In the Matter of the Arbitration of the Applicant and the Respondent

Arbitrator Veronica K. O’Connor, Erie County

Insurer Prevails on Failure to Cooperate with Vocational Rehabilitation Efforts Defense.

 

The Angle:      The denial based upon failure to comply with vocational rehabilitation efforts is usually a challenge to prevail upon.  Yet, in this case the insurer did prevail.  We do note that this case appears to be a bit different in that the Applicant did not argue that he could not return to work due to his own physician not releasing him or simply being unable to work due to alleged injuries.  Here, the Applicant repeatedly declined to participate because he would only accept a full time position with his current employer.

 

The Analysis:  While this arbitration decision also addresses a claim for chiropractic care, the focus of this analysis is on the insurer’s defense of failure to cooperate with vocational rehabilitation efforts thereby permitted a denial of lost wages. 

 

The Applicant, eligible injured person, was involved in a February 2, 2005, motor vehicle accident.  The insurer, based upon the recommendation by the independent chiropractic examiner, advised the Applicant that he would be contacted by a vocational rehabilitation counselor to assist in his return to work based upon the independent chiropractic examiner’s restrictions.

 

In response, the Applicant advised the vocational rehabilitation counselor that he could not work full time.  Further, he could not consider returning to work on a part time basis, as recommended, because he would be “stuck” with a part time income which he could not afford to live on.  He advised the counselor that his employer placed him on unpaid medical leave indefinitely and considered him an active employee.

 

Then the Applicant advised the counselor that he needed to focus his attention on medical treatment in order to return to full time employment.  The Applicant rejected the working part time and treating but chose to only seek medical treatment.

 

Finally, the Applicant advised the counselor that he refused to work part time and would only work if he could work full time.

 

Arbitrator O’Connor upheld the insurer’s denial with respect to lost wages based upon the Applicant’s failure to accept vocational rehabilitation efforts.

 

 

PEIPER on PROPERTY

Steven E. Peiper

[email protected]

 

7/02/07            Schatz v Allstate Ins. Co.

Supreme Court, Richmond County (Trial Level)

Insured is Presumed to know what is Covered under his Policy, and Likewise what has been Removed by the Plain Terms of the Insuring Contract.

Plaintiffs were landlords that sought coverage under their policy with the Allstate Insurance Company (hereinafter “Allstate”) for property damage which occurred at one of their rental locations.  When it was established that the property damage was caused as a result of vandals, Allstate relied on a clause in its policy which removed coverage for losses caused by vandalism to deny coverage.  Plaintiffs’ resisted Allstate’s disclaimer by arguing that previous policies provided vandalism coverage and that they were not made aware of Allstate’s decision to change the coverage available under their policy.

 

In upholding the Allstate disclaimer, the Court first noted that several years had passed since Allstate changed the coverage afforded under its policy.  Moreover, prior to making the change, Allstate notified the plaintiffs that vandalism coverage would not longer be provided unless a separate endorsement was purchased. 

 

Plaintiffs admitted to receiving a renewal policy every year from their broker, and also admitted to reviewing the terms of said policies.  The Court concluded that because an insured is deemed to be notice of what is covered under the policy, and what, on the other hand, is not, plaintiffs were aware that losses attributable to vandalism were not covered under the policy provided by Allstate.  In turn, the Court concluded that plaintiffs had made a conscious choice not to procure the additional coverage.           

 

6/26/07            Motors Ins. Co. v. Mautone

Appellate Division, Second Department

Inter-Company Arbitration Decision does not Preclude the Parties from Litigating Issues of Negligence which were not part of the Original Arbitration

In this case, an inter-company arbitration was held to determine the priority of coverage between two triggered automobile policies.  The arbitration resulted in plaintiff, Motors Insurance Company (hereinafter “Motors”), being held primary, with the defendant’s carrier being deemed to be in an excess position. 

 

Thereafter, Motors commenced an action for property damage against defendant.  Defendant’s counsel opposed Motors’ action on the grounds that the property damage claim was collaterally estopped by operation the previous inter-company arbitration.

 

The Second Department noted that Motors’ property damage claim was based solely upon a determination of whether defendant’s negligence caused the underlying motor vehicle accident.  As the inter-company arbitration was focused on a determination of which insurance policy applied first, the issue of negligence was never addressed.  As a result, the Second Department denied defendant’s motion for summary judgment because the determination of the inter-company arbitration panel was wholly irrelevant to the issue of Motors’ subsequent claim for property damage.

 

 

Across Borders

 

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

 

7/03/2007        Lazy Acres Markets, Inc. v. Tseng

California Court of Appeal
Insurer Did Not Have to Pay for Privately Retained Counsel In Malpractice Action
Plaintiff hired a security service to monitor its stores for shoplifting. The contract required the security service to defend and indemnify the Plaintiff for any claims raised for its services, and obtained an insurance policy naming the Plaintiff as an additional insured. A claim was made under the policy, and the insurance company retained Defendant Tseng as counsel for the Plaintiff. Plaintiff’s own insurer retained another counsel to represent Plaintiff. Defendant Tseng failed to disclose a potential conflict of interest resulting from her joint representation of Plaintiff and the security service. After continued dispute, Defendant withdrew from the case. Plaintiff obtained its own counsel. Plaintiffs settled the underlying action, and filed suit against Defendants and the security service’s insurance company for failure to indemnify, and Defendant Tseng for legal malpractice. The Court concluded that the Complaint failed to state a cause of action in legal malpractice, and that the insurance company would not have to pay for the Plaintiff’s privately retained counsel.

Submitted by: Mark Gesk and Ian Walchesky (Wayman, Irvin, & McAuley, LLC)

 

 

Reported Decisions

 

Flisch v. Walters



Calendar Date: June 4, 2007
Before: Mercure, J.P., Peters, Spain, Rose and Lahtinen, JJ.


Taylor & Associates, Albany (Keith M. Frary of counsel), for appellants.
Law Office of Anthony M. Barraco, P.C., Highland
(Anthony M. Barraco of counsel), for Jesse L. Flisch and another, respondents.

MEMORANDUM AND ORDER


Rose, J.

Appeal from an order of the Supreme Court (Hummel, J.), entered February 15, 2006 in Columbia County, which, upon reconsideration, adhered to its prior decision denying a motion by defendants Lincoln D. Flisch and Yaicha A. Flisch for summary judgment dismissing the complaint of plantiff Ashley Styles against them.

Plaintiffs commenced this action seeking damages for, among other things, the alleged residual consequences of a head injury sustained by plaintiff Ashley Styles (hereinafter plaintiff) in a motor vehicle accident. Following discovery, defendants Yaicha A. Flisch and Lincoln D. Flisch (hereinafter collectively referred to as defendants) moved for summary judgment dismissing the complaint of plaintiff against them on the ground that she had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court denied the motion, finding that defendants had failed to meet their initial burden of proof. Defendants moved to reargue, pointing out that the court had mistakenly rejected the report of an independent medical evaluation (hereinafter IME) conducted by defendants' neurologist. Supreme Court then acknowledged its error, reviewed the report, again found that defendants had not met their burden and stated that "[d]efendants' motion to . . . reargue is denied." Defendants appeal.

Although defendants' notice of appeal refers only to Supreme Court's order purporting to deny reargument and, of course, an order denying reargument is not appealable (see e.g. Fitzgerald v Adirondack Tr. Lines, 23 AD3d 907, 909 n 1 [2005]), we view the court's decision and order as having granted the motion for leave to reargue. Despite the court's statement that it denied reargument, it nevertheless acknowledged its error with respect to the IME, reconsidered defendants' motion for summary judgment and then adhered to its prior decision (see CPLR 2221 [f]). Under these circumstances, we consider this to be an appeal as of right (see Corey v Gorick Constr. Co., 271 AD2d 911, 912 [2000]; see also CPLR 5701 [a] [2] [viii]).

Turning to Supreme Court's finding that defendants failed to meet their burden of proof, we note that their moving papers focused on whether plaintiff sustained a serious injury under either the permanent consequential limitation of use or the significant limitation of use categories (see Insurance Law § 5102 [d]). They rely primarily on the report of Rene Elkin, a neurologist who stated that although plaintiff sustained a "significant head injury" with contusions and an epidural hematoma, these conditions subsequently resolved and an IME conducted two years later revealed no objective signs of neurological dysfunction. Elkin also opined that plaintiff's current subjective complaints, such as headaches, dizziness, poor concentration and short-term memory loss, could not be connected to any objective findings, and plaintiff's reported behavioral changes could not be ascribed to the head injury with any degree of medical certainty. Also, Elkin properly relied on the reports of plaintiff's treating physicians (see McElroy v Sivasubramaniam, 305 AD2d 944, 945 [2003]; Cody v Parker, 263 AD2d 866, 867 [1999]), the hospital records and an MRI report, in addition to her own physical examination of plaintiff.

In reply to plaintiffs' opposing papers, which first raised the claim that plaintiff sustained a qualifying serious injury in the 90/180-day category, defendants pointed out both that the records established, at most, only a six-day period of disability and there was no objective medical evidence of an injury that prevented plaintiff from performing her normal activities thereafter. In addition, plaintiff was able to return to school and neither she nor her mother avowed that she had been unable to undertake any of her normal activities other than not participating in sports. Thus, contrary to Supreme Court's finding, defendants met their initial burden as to all categories of serious injury claimed by plaintiffs (see Tuna v Babendererde, 32 AD3d 574, 576 [2006]; Hayes v Johnston, 17 AD3d 853, 853-854 [2005]; Jones v Norwich City School Dist., 283 AD2d 809, 811 [2001]).

As for the medical proof offered by plaintiffs in an effort to meet their own burden to raise a triable question of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]), the evaluations performed by plaintiff's treating nurse practitioner, Natalie Madar, are of limited evidentiary value because she does not identify any diagnostic tests performed or show that her findings are based on anything other than plaintiff's and her parents' subjective reports of headaches, dizziness, memory loss and mood swings (see John v Engel, 2 AD3d 1027, 1029 [2003]; Serrano v Canton, 299 AD2d 703, 704-705 [2002]). The report by Arnold Goran, a consulting neurologist, confirms none of Madar's opinions and merely expresses "a strong suspicion that 'difficulty putting [plaintiff's] finger on her nose' could certainly be related to the motor vehicle accident."

Neither Madar nor Goran discuss any degree of significant impairment or permanency, nor is there any qualitative analysis of how plaintiff's alleged limitations compare to normal neurological functioning (see Clements v Lasher, 15 AD3d 712, 713 [2005]; June v Gonet, 298 AD2d 811, 812-813 [2002]). In addition, neither expert disputes Elkin's opinion that plaintiff's hematoma subsequently resolved without any residual neurologic deficit and an MRI performed less than two months after the accident was normal. In fact, Madar's own records reflect that plaintiff reported that her headaches had resolved and her other symptoms were significantly improved during the months following the accident. Simply put, the record fails to establish that any residual effects of the accident which plaintiff may have experienced are more than mild, minor or slight limitations and, as such, falls short of showing the degree of impairment necessary to constitute either a permanent consequential limitation or significant limitation of use. In addition, the medical records show only that plaintiff was restricted from participating in sporting activities following the accident, and neither plaintiff nor her mother averred that she had been unable to attend school or perform her other usual activities during the 180 days following the accident. Due to this lack of evidence, plaintiffs failed to substantiate their claim of an injury in the 90/180-day category (see Simpson v Feyrer, 27 AD3d 881, 882 [2006]). Accordingly, upon reargument, summary judgment should have been granted to defendants.

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

ORDERED that the order is modified, on the law, with costs to defendants Yaicha A. Flisch and Lincoln D. Flisch, by reversing so much thereof as denied said defendants' motion; motion granted, summary judgment awarded to said defendants and complaint of plaintiff Ashley Styles dismissed against them; and, as so modified, affirmed.

 

 

Harris v. Carella

 


Appeal from an order of the Supreme Court, Niagara County (Gerald J. Whalen, J.), entered August 2, 2006 in a personal injury action. The order denied defendant's motion for summary judgment dismissing the complaint.


Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo

(Jeffrey F. Baase Of Counsel), For Defendant-Appellant.
The Barnes Firm, P.C., Buffalo (Paul B. Becker Of Counsel), For Plaintiffs-Respondents.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent loss of use of a body organ, member, function or system, fracture and significant disfigurement categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by Christopher Harris (plaintiff) when the vehicle he was driving collided with a vehicle driven by defendant. Defendant moved 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), and Supreme Court denied the motion.

The complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury within the meaning of six categories of Insurance Law § 5102 (d). We note at the outset that defendant abandoned her contention that plaintiff did not sustain a serious injury under the 90/180 category inasmuch as she failed to address that category in her brief on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984), and we therefore do not address that category. We conclude, however, that the court should have granted the motion with respect to three of the five remaining categories.

With respect to the permanent consequential limitation of use and significant limitation of use categories, we agree with defendant that the court erred in refusing to consider the affidavit of a physician who examined plaintiff on defendant's behalf based on the court's determination that the affidavit was inadequate. The expert's affidavit establishes that the examining physician is licensed to practice medicine in this state, and "the fact that a physician [is] not a specialist in a particular area generally goes to the weight to be given the expert['s affidavit] and not its admissibility" (Matter of Marx v McCall, 306 AD2d 797, 799; see Williams v Halpern, 25 AD3d 467; cf. Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482; Mills v Moriarty, 302 AD2d 436, lv denied 100 NY2d 502). In addition, the physician properly relied upon an MRI report and similar reports prepared by plaintiff's treating physicians in rendering his opinion (see generally Franchini v Palmieri, 1 NY3d 536, 537; Meely v 4 G's Truck Renting Co., Inc., 16 AD3d 26, 29-30). Although "[those] reports were unsworn, the . . . medical opinion[] relying on those . . . reports [is] sworn and thus competent evidence" (Brown v Dunlap, 4 NY3d 566, 577 n 5).

We conclude that, although defendant met her initial burden with respect to those two categories of serious injury inasmuch as her examining physician opined that plaintiff sustained only a mild injury that was healing and that he had no bulging discs or other objective indicia of injury (see Constantine v Serafin, 16 AD3d 1145), plaintiffs raised an issue of fact with respect to those categories (see generally Avellanosa v Orazio, 299 AD2d 831; Calucci v Baker, 299 AD2d 897). In opposition to defendant's motion, plaintiffs submitted the affidavit of plaintiff's treating chiropractor, who stated that plaintiff had a loss of lordosis in his cervical spine, muscle spasms, and a loss of range of motion in his cervical and lumbar spine (see Mancuso v Collins, 32 AD3d 1325). The chiropractor also stated that plaintiff's injury was significant, permanent, and causally related to the accident, thus raising a triable issue of fact whether plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352-353; Vitez v Shelton, 6 AD3d 1180, 1181-1182). Contrary to defendant's contention, the chiropractor set forth the tests that he used to ascertain the degree of plaintiff's loss of range of motion and correlated that loss to the normal range of motion for the relevant areas of plaintiff's spine.

We agree with defendant, however, that the court erred in denying those parts of her motion with respect to the three remaining categories of serious injury. Defendant submitted evidence establishing as a matter of law that plaintiff had some use of his spine. Thus, defendant's motion should have been granted with respect to the permanent loss of use category, which requires a total loss of use of a body organ, member, function or system (see Oberly v Bangs Ambulance, 96 NY2d 295, 297). Defendant also established as a matter of law that plaintiff did not sustain a fracture in the accident, and plaintiff failed to raise a triable issue of fact in opposition (cf. Wheeler v Laechner, 34 AD3d 1222). Finally, defendant submitted evidence establishing as a matter of law that plaintiff did not sustain a significant disfigurement (see Hemmes v Twedt, 180 AD2d 925, 926), and plaintiffs failed to address that category in opposition to defendant's motion. We therefore modify the order accordingly.

We have considered defendant's remaining contentions, and we conclude that they are without merit.

 

 

Cummings  v. Jiayan Gu

 


Appeal from a judgment of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered October 31, 2005 in a personal injury action. The judgment, upon a jury verdict, dismissed the complaint.


Andrews, Bernstein & Maranto, LLP, Buffalo (Benjamin J. Andrews Of Counsel),

For Plaintiffs-Appellants.
Boeggeman, George, Hodges & Corde, P.C., White Plains

(Robert S. Ondrovic Of Counsel), For Defendants-Respondents.


It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Richard T. Cummings (plaintiff) when his vehicle was rear-ended by a vehicle driven by defendant Jiayan Gu and owned by defendant NYRAC, Inc., doing business as Budget Rent-A-Car. Supreme Court denied plaintiffs' motions for a directed verdict on the issue of whether plaintiff sustained a serious injury in the motor vehicle accident and on the issue of negligence, and the jury returned a verdict finding that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Contrary to the contention of plaintiffs, the court properly denied their motion for a directed verdict on the issue of serious injury. "In order to direct a verdict in favor of the plaintiff, the court must view the evidence in the light most favorable to the defendants and conclude [that] there is no rational process by which the fact trier could base a finding in favor of the [defendants]' " (Pecora v Lawrence, 28 AD3d 1136, 1137, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). Plaintiffs alleged that plaintiff sustained a serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180 categories. Addressing first the 90/180 category, we note that, "[t]o qualify as a serious injury under [that] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature . . . as well as evidence that plaintiff's activities were curtailed to a great extent" by that injury (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [internal quotation marks omitted]; see Leahey v Fitzgerald, 1 AD3d 924, 926). Here, there was abundant evidence that plaintiff's activities were curtailed to a great degree for the requisite period of time following the motor vehicle accident. Plaintiffs failed, however, to present any "objective medical evidence to establish a qualifying injury or impairment" with respect to that category (Nitti v Clerrico, 98 NY2d 345, 357). Further, plaintiffs presented no testimony that plaintiff's physicians placed restrictions on plaintiff's activities or that the injuries caused by the motor vehicle accident resulted in the curtailment of those activities.

With respect to the remaining two categories, we note that whether an injury qualifies under either of those categories " relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part' " (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). "Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommells v Perez, 4 NY3d 566, 574). Plaintiffs presented the testimony of two physicians, each of whom testified that plaintiff's initial MRI revealed a disc herniation at C3-4 that was caused by the motor vehicle accident. Neither physician testified, however, that plaintiff was required to undergo fusion surgery as a result of the disc herniation. Moreover, on cross-examination, one of the physicians admitted that plaintiff did not inform the physician that he had prior significant neck injuries. According to that physician, such information would have been helpful in making a prognosis, and the physician testified that the "deciding factor" in determining that plaintiff should undergo the disc fusion surgery "was his intolerable pain[] and the discogram results," which may in fact have been caused by the preexisting degenerative condition of plaintiff's cervical spine. That testimony raised an issue of fact whether the fusion surgery was necessitated by the motor vehicle accident or by the preexisting degenerative condition of plaintiff's spine. We thus conclude that the court properly denied plaintiffs' motion for a directed verdict on the issue of whether plaintiff sustained a serious injury in the motor vehicle accident (see Ocasio v Zorbas, 14 AD3d 499, 500).

We further reject plaintiffs' contention that the verdict is against the weight of the evidence insofar as the jury found that plaintiff did not sustain a serious injury in the motor vehicle accident. "A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence" (Jaquay v Avery, 244 AD2d 730, 730-731; see Lolik v Big V Supermarkets, 86 NY2d 744, 746). "A jury is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination . . . Indeed, a jury is at liberty to reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion" (Zapata v Dagostino, 265 AD2d 324, 325). In light of the evidence of plaintiff's preexisting injuries and the degenerative changes to plaintiff's neck, there is evidence from which the jury could have found that the spinal fusion surgery was not required solely because of the herniated disc caused by the motor vehicle accident. Indeed, other than the fact that plaintiff underwent spinal fusion surgery, there is little, if any, other objective evidence of the extent or significance of his neck injury. Because there were other explanations apart from the motor vehicle accident for the necessity for the surgery, the jury was free to discredit the testimony of plaintiff's experts (see Quigg v Murphy, 37 AD3d 1191, 1193), and we conclude that the jury's verdict is based on a fair interpretation of the evidence (see Zapata, 265 AD2d at 325-326; cf. Karamanos v Bateman, 11 AD3d 926).

Finally, our determination with respect to the issue of serious injury renders moot the further contention of plaintiffs that the court erred in denying their motion for a directed verdict on the issue of negligence.

 

 

Ali v. Mirshah



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),

for appellants.
Grover & Fensterstock, P.C., New York, N.Y. (Avraham Goldberg of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated September 20, 2006, which denied their cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The defendants met their burden of establishing, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under the permanent or significant limitation categories (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353; Gaddy v Eyler, 79 NY2d 955, 956-957). Moreover, since the plaintiff did not allege in his bill of particulars, as contained in the record on appeal, that he sustained a medically-determined injury or impairment of a nonpermanent nature, which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident, the defendants were not required to address these allegations on their cross motion.

In opposition, the plaintiff failed to raise a triable issue of fact. Since the plaintiff alleged a permanent serious injury and a significant limitation of use, he was required to submit objective medical evidence based upon a recent examination (see Mejia v DeRose, 35 AD3d 407, 407; Laruffa v Yui Ming Lau, 32 AD3d 996, 997; Elgendy v Nieradko, 307 AD2d 251). He failed to satisfy this requirement. The conclusions contained in the affidavit of the plaintiff's treating chiropractor were based on an examination of the plaintiff that took place only six days after the accident, and were not based on a recent examination (see Marziotto v Striano, 38 AD3d 623, 624). These conclusions also relied on the unsworn reports of others (see Phillips v Zilinsky, 39 AD3d 728; Porto v Blum, 39 AD3d 614; Iusmen v Konopka, 38 AD3d 608, 609). The submission of the plaintiff's magnetic resonance imaging reports were without probative value since they were unaffirmed (see Phillips v Zilinsky, supra; Osgood v Martes, 39 AD3d 516). The plaintiff's remaining submissions, including his affidavit and medical billing information, did not constitute admissible objective evidence of a serious injury (see Elder v Stokes, 35 AD3d 799, 800; Brobeck v Jolloh, 32 AD3d 526, 526-527; Fisher v Williams, 289 AD2d 288, 289).
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

Tavarez v. Jackson



James P. Nunemaker, Jr., & Associates, Uniondale, N.Y.
(Kathleen E. Fioretti of counsel), for appellant.
Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of counsel),

for respondents and plaintiffs.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Sahney Jagjeet Singh appeals from so much of an order of the Supreme Court, Suffolk County (Loughlin, J.), dated September 8, 2006, as denied those branches of his cross motion which were for summary judgment dismissing the complaint insofar as asserted against him by the plaintiffs Veronica Tavarez and Hilda Santana on the ground that they did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The appellant failed to make a prima facie showing that neither the plaintiff Veronica Tavarez nor the plaintiff Hilda Santana (hereinafter the plaintiffs) sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Tchjevskaia v Chase, 15 AD3d 389). The affirmed reports of the appellant's examining neurologist disclose that he found limitations in cervical range of motion in both plaintiffs. Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiffs' opposition papers (see Chaplin v Taylor, 273 AD2d 188).
SCHMIDT, J.P., CRANE, KRAUSMAN and DICKERSON, JJ., concur.

 

 

Valdes v. Timberger




Jacobowitz & Gubits, LLP, Walden, N.Y. (Peter R. Eriksen of counsel), for appellant.
Eisenberg & Kirsch, Liberty, N.Y. (Donniel Ogorek of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated June 30, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Toure v Avis-Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed report of their orthopedist noted that the plaintiff had radiating pain down the left leg, and straight leg raising was "equivocally positive at 80 degrees on the left side," without stating what was normal. He claimed that a physical examination of the plaintiff's lumbar and cervical spine revealed "a full range of motion in all directions" without setting forth the objective test or tests performed, his measurements of ranges of motion, if any, or what constituted a normal range of motion (see Chui Fong Lam v Spring Scaffolding, Inc., 33 AD3d 955).

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, we need not consider the sufficiency of the plaintiff's opposition papers (see Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., GOLDSTEIN, SKELOS and BALKIN, JJ., concur.

Schatz v. Allstate Insurance Company

 

            Upon the foregoing papers, defendants motion for summary judgment is granted.

 

            Defendants Allstate Insurance Company (“Allstate”) and the Mannino Agency, Inc. move

by notice of motion for an order granting them summary judgment and dismissing the complaint.

Plaintiffs Philip and Louis Schatz oppose the motion.

 

            This action arises from Allstate’s denial of coverage for damages sustained by plaintiffs

as a result of vandalism which occurred on May 6, 2005 at premises known as 545 Annadale

Road, Staten Island, New York (hereafter, the “premises”). Plaintiffs commenced this action or

about July 27, 2005. Issue was joined by the service of an answer by defendants on or about

January 16, 2006.

 

            As is relevant, plaintiff-landlords had insured the premises with defendant Allstate

through the Mannino Agency for at least 10 years prior to the date of the underlying incident.

The policy was renewed each year for a one year term starting and ending in November, with

plaintiffs being sent a landlord renewal package each September. Included in this package was a

notice of any changes to the existing policy. In pertinent part, the renewal package sent in

September 2001 contained an important notice to the effect that the policy would no longer cover

any loss consisting of or caused by vandalism” (Defendants’ Exhibit “J”). It is undisputed that this

same policy was renewed annually by plaintiffs through November 2005, and was in effect

on the date of the alleged loss, May 6, 2005. In a section of that policy entitled Losses we do

not cover” is the specific term Vandalism(DefendantsExhibits K, L).

 

            At his deposition, plaintiff Philip Schatz testified that each year he received and reviewed

the renewal packages sent by the Mannino Agency (Schatz E/B/T pp 87-88, 108-109). In

addition, Phillip Nappi, a territorial product manager for Allstate, testified that coverage for

vandalism had become an optional endorsement for landlord policies around 2000 and 2001, and

that plaintiffs were among those notified of the elimination of such coverage (Nappi E/B/T pp

10-12). Defendants allege that plaintiffs are professional landlords who currently own at least

four rental properties (and have owned as many as ten), all of which were insured by Allstate.

Based on the foregoing, defendants allege that plaintiffs cannot claim that they were unaware of

the policy change made in 2001, and since damages from vandalism are specifically excluded,

their disclaimer of coverage was proper. Accordingly, defendants allege they are entitled to

dismissal of the complaint.

 

            In opposition, plaintiffs have submitted (1) an attorney’s affirmation, (2) copies of the

aforementioned deposition testimony, (3) a purported transcript of recorded conversations, and

(4) an affidavit by plaintiff Phillip Schatz. Notwithstanding the purported disclaimer, plaintiffs

contend that a triable issue of fact exists as to whether Mannino negligently failed to obtain

and/or maintain vandalism coverage. In addition, plaintiffs allege that Mannino was under a

special duty to advise plaintiffs of the coverage changes. They also claim that Mannino has

orally admitted that Allstate should have paid the claim because the insurer failed to give

adequate notice of the change, notice which they allege Mannino was also required to give and

failed to do so.

 

            Summary judgment is a drastic remedy that should be granted only if no triable issues of

fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v.

Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for

summary judgment, the function of the court is issue finding, not issue determination (see

Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry,

the proof must be scrutinized carefully in the light most favorable to the party opposing the

motion (see Glennon v. Mayo, 148 AD2d 580). To prevail on the motion, the moving party must

present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v.

Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once

a prima facie showing has been made, however, the burden shifts to the party opposing the

motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562).  In this regard, mere conclusions,

expressions of hope or unsubstantiated allegations or assertions are insufficientto raise a triable issue (id. at 562). Thus, summary judgment, which operates to deprive a party of his or her day in court, is only appropriate where the movant’s initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (Persaud v. Darbeau, 13 AD3d 347).

 

            With this criteria in mind, the Court concludes that defendants have established their

prima facie entitlement to summary judgment by demonstrating that vandalism was not a

covered event. Thus, it falls upon plaintiffs to raise a triable issue of fact or suffer dismissal of

their complaint. For the following reasons, plaintiffs have failed to satisfy that burden.

 

            In his opposing papers, plaintiff Phillip Schatz does not deny receiving the landlord

renewal package or reviewing its contents. Therefore, he is deemed to be on notice of the

exclusion, for which he declined to purchase optional coverage starting in 2001. In this context,

it matters not that plaintiff may have originally requested such coverage, as it was included in the

standard policy. Viewing the evidence in the light most favorable to plaintiffs, it nevertheless

appears that, as professional landlords, they made a business decision to forego the purchase of vandalism” coverage when advised by Allstate of the policy change. Equally unavailing is any

purported assertion that Mannino owed them a special duty to advise plaintiffs of the policy

change, and any conceivable claim that plaintiffs would have purchased the optional coverage if

advised of the change by Mannino is without evidentiary support and is wholly speculative.

Finally, plaintiffs’ purported reliance on the self-serving hearsay statements contained in an

alleged transcript of conversations with unidentified insurance agents is without probative value,

as are the personal opinions of parties without the authority to bind Allstate (see Loschiavo v.

Port Auth of N.Y. & N.J., 58 NY2d 1040).

Accordingly, it is

 

ORDERED that defendants’ motion for summary judgment is granted and the complaint

dismissed and it is further

 

ORDERED that the clerk enter judgment in accordance herewith

 

ENTER,

 

s/ Phillip G. Minardo

J.S.C.

 

 

Motors Insurance Corp. v Neil Mautone


Carl S. Young & Associates, New York, N.Y., for appellant.
Susan B. Owens, White Plains, N.Y. (Paul L. Neugebauer of
counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for injury to property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 11, 2006, as denied its motion for summary judgment and granted those branches of the defendants' cross motion which were for leave to amend their answer to raise collateral estoppel as an affirmative defense and for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' cross motion which were for leave to amend their answer to raise collateral estoppel as an affirmative defense and for summary judgment dismissing the complaint, and substituting therefor a provision denying those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff contends that a determination made in a prior inter-company arbitration proceeding does not bar it from seeking recovery for property damage to its insured's vehicle allegedly caused by the defendants' negligence. We agree. Under the doctrine of collateral estoppel, a party is precluded "from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500; see Altegra Credit Co. v Tin Chu, 29 AD3d 718; Pouncy v Dudley, 27 AD3d 633). However, preclusive effect will only be given where the particular issue was "actually litigated, squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826; see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439; Singleton Mgt. v Compere, 243 AD2d 213). Here, the inter-company arbitration proceeding between the plaintiff and the defendants' insurance carrier resulted in a determination that the defendants' carrier was only required to provide excess coverage for the property damage to the subject vehicle. However, the arbitration panel's decision was predicated upon the language of the applicable insurance policies, and no finding was made as to whether the accident which damaged the vehicle was caused by the defendants' alleged negligence. Accordingly, the arbitration panel's decision cannot be given preclusive effect in this action (see McDonald v Rose, 37 AD3d 781; Kleinman v E.L. Tool & Die Co. Inc., 30 AD3d 1123; National Union Fire Ins. Co. of Pittsburgh, Pa. v Hartford Ins. Co. of Midwest, 248 AD2d 78, affd 93 NY2d 983), and the Supreme Court erred in granting that branch of the defendants' cross motion which was for summary judgment dismissing the complaint on this ground. Since the doctrine of collateral estoppel cannot properly be invoked herein, the court should have also denied that branch of the defendants' cross motion which was for leave to amend their answer to raise this affirmative defense (see CPLR 3025[2]; Jackson Heights Care Center LLC v Bloch, 39 AD3d 477). However, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint. The plaintiff did not make a prima facie showing that it was entitled to summary judgment, on the theory that the defendants breached a mutual benefit bailment agreement by failing to exercise ordinary care, because it submitted no evidentiary proof to establish how the accident occurred. In any event, in opposition to the motion, the defendants raised a triable issue of fact as to whether the subject agreement may be governed by General Business Law § 396-z(2), which places limitations on a rental vehicle company's right to recover damages for injury to property from renters (see Associated Group Servs. v Grow, 258 AD2d 716; see also Fili v Matson Motors, 183 AD2d 324).

The plaintiff's remaining contentions are without merit.
SCHMIDT, J.P., CRANE, KRAUSMAN and DICKERSON, JJ., concur

 

 

US Pack Network Corp. v. Travelers Property Casualty



Rubin, Fiorella & Friedman, LLP, New York (Paul Kovner of
counsel), for appellants.
Todd Brandon Eder, East Brunswick, NJ, for respondents.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered November 17, 2005, which, to the extent appealed from as limited by the briefs, denied the motion by defendant insurance brokers Tanenbaum-Harber and Kravitz for summary judgment dismissing the action against them, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered March 14, 2006, which, to the extent appealable, denied these defendants' motion to renew, unanimously dismissed, without costs, as academic.

On a previous appeal, this Court affirmed a determination that plaintiff had failed to give the requisite prompt notice of the claimed losses to its insurance broker (see US Pack Network Corp. v Travelers Prop. Cas., 23 AD3d 299, 300 [2005]). We specifically held that the affidavit of plaintiff's president stating that the broker was verbally notified shortly after each loss was insufficient even to raise a bona fide issue of fact as to whether there was prompt notice.

That being established, it is irrelevant whether defendant broker breached its agreement with plaintiff by obtaining a policy that failed to provide the full coverage plaintiff sought. Although, as plaintiff points out, there may be a distinction between the defenses available in a suit on a policy and those which may be interposed in a suit on an agreement to procure a policy (see Kinns v Schulz, 131 AD2d 957 [1987]), the damages plaintiff claims here as a result of the alleged breach of contract were not caused by the breach of that contract. They would have been suffered in any event, since even had the broker obtained more inclusive coverage, plaintiff itself failed to provide the timely notice necessary to obtain the benefits.

American Guarantee and Liability Insurance Company v. CNA Reinsurance Co.

Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for appellant.
Harrington, Ocko & Monk LLP, White Plains (I. Paul
Howansky of counsel), for respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered June 13, 2006, which denied plaintiff's motion for statutory interest on the amounts previously awarded for indemnification and defense costs in the underlying personal injury action, unanimously affirmed, without costs.

The issue raised by plaintiff regarding whether or not it was entitled to statutory interest on the amount it recovered in this litigation as well as interest on the amount it paid for defense costs, was previously determined by this Court.

In its brief on the prior appeal from the denial of summary judgment, plaintiff argued that it was entitled to statutory interest at the rate of 9%. Although this Court did not specifically address this issue in the prior decision, as indicated, we considered all of the parties' arguments. We modified the order appealed from to the extent of granting plaintiff summary judgment and found plaintiff's additional arguments unavailing (American Guar. & Liab. Ins. Co. v CNA Reins. Co., 16 AD3d 154, 155 [2005]). Plaintiff is therefore barred from re-litigating the issue of its entitlement to statutory interest by the doctrine of the law of the case (cf. Hass & Gottlieb v Sook Hi Lee, 11 AD3d 230 [2004]).

Green v. Nara Car & Limo, Inc.


Edward Garfinkel (Fiedelman & McGaw, Jericho, N.Y. [Dawn C.
DeSimone] of counsel), for appellants Nara Car & Limo, Inc. and
Diop Barou.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for
appellants Accad Cab Corp. and Sabir
Hussain.
Donald Friedman P.C., Brooklyn, N.Y. (Mitchell Gorkin of
counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Nara Car & Limo, Inc., and Diop Barou appeal, and the defendants Accad Cab Corp and Sabir Hussain separately appeal, from an order of the Supreme Court, Kings County (Schneier, J.), dated September 8, 2006, which denied the motion of the defendants Accad Cab Corp. and Sabir Hussain, in which the defendants Nara Car & Limo, Inc., and Diop Barou joined, for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable by the defendants appearing separately and filing separate briefs.

On their motion, the defendants Accad Cab Corp. and Sabir Hussain established prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). These submissions were relied upon by the defendants Nara Car & Limo, Inc., and Diop Barou when they joined in the motion.

The Supreme Court properly determined that in opposition to the prima facie showing, the plaintiff raised a triable issue of fact. The affidavit of the plaintiff's treating chiropractor raised a triable issue of fact as to whether the plaintiff sustained a serious injury to his lumbar spine under either the permanent consequential or significant limitation of use categories of Insurance Law § 5102(d) (see Lim v Tiburzi, 36 AD3d 671; Shpakovskaya v Etienne, 23 AD3d 368; Clervoix v Edwards, 10 AD3d 626; Acosta v Rubin, 2 AD3d 657; Rosado v Martinez, 289 AD2d 386; Vitale v Lev Express Cab Corp., 273 AD2d 225). The plaintiff's treating chiropractor opined in his affidavit, based on his contemporaneous and most recent examinations of the plaintiff, as well as upon his review of the plaintiff's lumbar magnetic resonance imaging report, which showed, inter alia, a bulging disc at L5-S1, that the plaintiff's lumbar injuries and range of motion limitations observed were permanent and causally related to the subject accident.

Contrary to the defendants' assertions on appeal, the affidavit of the plaintiff's treating chiropractor adequately explained any lengthy gap in the plaintiff's treatment history (see Pommells v Perez, 4 NY3d 566, 574).

Hoxha v. McEachern

 

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for appellants.
Saasto & Hirsch, Hicksville, N.Y. (Robert Alan Saasto of
counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Balter, J.), dated July 26, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law as to part of the plaintiff's serious injury claim by showing, through competent medical evidence, that she did not sustain a "permanent consequential limitation of use" of a body organ, member, function, or system as a result of the subject accident (Insurance Law § 5102[d]; see Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, however, the plaintiff raised a triable issue of fact by submitting competent medical evidence to the contrary (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352-353).

Moreover, the defendants failed to establish, prima facie, that the plaintiff did not sustain "a medically determined injury or impairment of a non-permanent nature which prevent[ed] [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102[d]). The defendants' claims that the plaintiff's injuries were the result of her "subjective complaints" and that any restriction in her daily activities "was of her own volition" were unsupported by any competent evidence (see Dufel v Green, 84 NY2d 795, 798). Significantly, the defendants' neurological expert, who reviewed, inter alia, the diagnostic test reports generated in the days and weeks following the subject accident, offered no opinion as to the nature, seriousness, or potential cause of any condition or finding documented therein. Consequently, the defendants failed to make out a prima facie case with respect to the plaintiff's claim of serious injury based on the 90/180 day category (see Ayotte v Gervasio, 81 NY2d 1062, 1063).

 

Jin v. Kwon


Steven Louros, New York, N.Y., for appellants.
Bryan M. Rothenberg (Fiedelman & McGaw, Jericho, N.Y.
[Dawn C. DeSimone and Ross P.
Masler] of counsel), for respondent Ki
Y. Kwon.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York,
N.Y. (Gregory S. Katz, Adam
Schwartzstein, and Debra A. Adler of
counsel), for respondents Vanessa Ramsawak
and Little Richie Bus Service, Inc.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs Shin Sook Jin, Eun Jung Han, and Son Hee Han appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), entered May 25, 2006, as granted that branch of the motion of the defendants Vanessa Ramsawak and Little Richie Bus Service, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the separate motion of the defendant Ki Y. Kwon which was for summary judgment dismissing the complaint insofar as asserted against him by the plaintiff Eun Jung Han on the ground that the plaintiff Eun Jung Han did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the appeal by the plaintiffs Shin Sook Jin and Son Hee Han from so much of the order as granted that branch of the separate motion of the defendant Ki Y. Kwon which was for summary judgment dismissing the complaint insofar as asserted against him by the plaintiff Eun Jung Han is dismissed, as the plaintiffs Shin Sook Jin and Son Hee Han are not aggrieved thereby (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the motion of the defendants Vanessa Ramsawak and Little Richie Bus Service, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them is denied, and that branch of the separate motion of the defendant Ki Y. Kwon which was for summary judgment dismissing the complaint insofar as asserted against him by the plaintiff Eun Jung Han is denied; and it is further,

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

The plaintiff Shin Sook Jin and her adult daughter, the plaintiff Eun Jung Han (hereinafter the injured plaintiffs), were passengers in a vehicle owned and operated by the defendant Ki Y. Kwon, when that vehicle was involved in a collision with a school bus owned by the defendant Little Richie Bus Service, Inc. (hereinafter Little Richie), and operated by the defendant Vanessa Ramsawak. Shin Sook Jin and her husband, Son Hee Han, together with Eun Jun Han, commenced the instant action against Ki Y. Kwon, Ramsawak, and Little Richie. Ramsawak and Little Richie together moved for summary judgment dismissing the complaint insofar as asserted against them on the grounds, inter alia, that they were not at fault in causing the collision, and that the injured plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Ki Y. Kwon separately moved for summary judgment dismissing the complaint insofar as asserted against him, on the ground that the injured plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The Supreme Court granted the motion of Ramsawak and Little Richie for summary judgment dismissing the complaint insofar as asserted against them by all of the plaintiffs, finding that Ramsawak and Little Richie were not at fault in causing the collision, and that Eun Jung Han did not sustain a serious injury in any event. The court granted that branch of the separate motion of Ki Y. Kwon which was for summary judgment dismissing the complaint insofar as asserted against him by Eun Jung Han, premised on its determination that she did not sustain a serious injury. We reverse.

The evidence submitted by all of the defendants in support of those branches of their respective motions which were for summary judgment dismissing the complaint insofar as asserted by the plaintiff Eun Jung Han on the ground that she did not sustain a serious injury, as defined by Insurance Law § 5102(d), failed to establish their entitlement to judgment as a matter of law. While the affirmed report of the defendants' orthopedist stated that the plaintiff Eun Jung Han's range of forward flexion was 65 degrees, it failed to compare that measurement to the normal range of forward flexion and, in fact, the report appeared to indicate that her range of forward flexion was less than normal (see DeLuca v Miceli, 37 AD3d 643; Kelly v Rehfeld, 26 AD3d 469).

The proof submitted by Ramsawak and Little Richie in support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them, on the ground that they were not at fault in causing the accident, revealed the existence of a triable issue of fact as to whether or not Ramsawak was negligent in the operation of the school bus owned by Little Richie. Accordingly, those defendants failed to establish their entitlement to judgment as a matter of law in that regard, and that branch of their motion should have been denied (see CPLR 3212[b]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; cf. Mora v Garcia, 3 AD3d 478, 479).

 

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