Coverage Pointers - Volume IX, No. 15

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Dear Coverage Pointers Subscribers:

 

Legislative Update:

 

Negotiations are still ongoing with respect to the Notice-Prejudice Bill.  The Governor's office has not yet introduced its latest draft.  Watch this space for developments.

 

Earl's Pearls

Earl Cantwell provides you with a review of the new rules relating to attorney conduct during state court depositions

 

The Other Insurance Clause

 

Today, I want to spend a moment with the ever-popular Other Insurance Clause.

 

A tip-of-the-hat to the Other Insurance Clause in the liability policy.  Often ignored yet always important, you are reminded of the importance of closely examining the competing other insurance clauses in policies covering similar risks.  Do the policies pro-rate?  Is one excess over another?  Is there an "escape clause" which causes a policy that would normally provide coverage to melt away if there is insurance from another valid and collectible policy?  Is the policy a contingent liability policy that does not apply under certain circumstances? 

 

No good coverage fan will ever give an opinion about the order of coverage without examining and comparing the clauses in all potentially applicable policies.

 

Why are we honoring that clause today?  Because of a cogent analysis of  the other insurance clauses in an excess policies covering a tractor and trailer, by Judge Leonard B. Sand, United States District Judge for the Southern District of New York in a decision handed down on Thursday, we were able to secure a multi-million dollar recovery for a client in an action seeking to allocate the coverage for a pre-funded settlement. There, the court recognized that a "pure excess" clause placed our policy over another excess policy containing a clause that contemplated contribution by shares. 

 

Speaking of fortunes, how will you spend yours?

 

I'm contemplating, tonight, how I will spend my government tax rebate.  How many martinis can I buy for $300?  Being a good American, I must heed the government's determination that I spend it, rather than save it.  I'm considering a contribution to the Dennis Kuchinch or Duncan Hunter Campaign Committees.  Oh.  Too late, huh? Fred Thompson?  Mike Gravel? [He's still IN the race]. If you cannot decide, you might consider a donation to the Coverage Pointers Slush Fund which will help pay for e-mail postage for future issues. I'll keep any extra not spent.

 

Coverage Quiz Re-visited

 

We had lots of entries, some with creative solutions, most with humor and creativity.  Thanks especially to my downstate friend, Mr. Gold, who suggested that there was late notice so no coverage was available at all.  Good thinkin'!


The winner of our Coverage Quiz in the last issue was Ken Carter, Corporate Casualty Claim Manager at Merchants Insurance Group.  For those who don't recall the question:

 

There's a passenger in a car, let's call him Clem the Claimant.  The vehicle he's in, insured by Cheapo Insurance Company has a 25/50 policy with $25K in SUM coverage.  That car is struck by a vehicle, insured by Bad Driver Insurance Company with $100,000 in liability coverage.  Clem owns a personal auto, insured with ABC Insurance Company that has $300,000 in single liability limits and $300,000 in SUM (Underinsured Motorist) limits.  He is the named insured. His business also owns a car.  It is insured with XYZ Insurance Company and has $500,000 in liability limits and $500,000 in SUM limits.
 
Assume Clem's injuries are worth $1,000,000.  Assume further that the Bad Driver has offered its $100,000 limits.  We know he has no SUM coverage available through Cheapo, because of the low limits.  We know he can secure SUM coverage from ABC (with $300,000 in limits) and XYZ (with $500,000 in limits).  
 
Here's the question: Assuming, as indicated, that a SUM Arbitrator finds that the injuries are worth way more than available SUM coverage, how much will ABC pay and how much will XYZ pay? And why?

 

Ken recognized that there was a very important question to be answered before the question could be properly considered.  We know several important questions that needed to be answered.  We know that Clem was a named insured on his own personal policy with ABC but the facts didn't indicate whether or not he was a named insured (or merely an additional insured) on the policy with XYZ.  The answer to that question is critical because under Condition 8 of the SUM Endorsement, a policy on which a claimant is a named insured would be reached before a policy in which a claimant is an additional insured.  In our fact pattern, inquiry would have told you that he was a named insured on both policies.  The policies would thereby be at the same level and a court would likely prorate them.

 

Since the policy does not permit SUM coverage to stack, the most the insured will ever get from his SUM coverages is $400K ($500K less the $100K received from Bad Driver's carrier).  We would then resolve it by pro rating the coverages -- adding the limits together, $300K + $500K = $800K and then taking a ratio of the two limits against the $400K with the one carrier paying 3/8th and the other paying 5/8th.  Under that approach, ABC would pay $150,000 and XYZ would pay $250,000.

 

From Audrey Seeley, the undisputed Queen of No Fault:

 

We have a good mix of decisions for you this issue.  My favorite decision, for entertainment, is the band members who get into a fight in the parking lot after their gig and a number of Jack Daniels shots.  The drummer advises the band leader he quits after an argument over whose is not pulling their weight in loading up equipment.  The band leader proceeds to attempt to punch the drummer through an open truck window.  The wise arbitrator held there was no occurrence here as the band leader intentionally caused his bodily injury.  I would love to know what the purported injuries were as I don't think a bruised ego is a bodily injury. 

 

There are a number of court decisions this time that unanimously reject disturbing an arbitrator's award.

 

It's almost February and Spring is around the corner (in 5 months or so here) so let us know if you could use some Spring training.  Send me an email at [email protected] with the subject line Spring training if you are interested.

 

How About Mark's Mark?

 

It's Serious, but Not That Serious

 

Plaintiff's Bar: Be wary of simply citing a litany of injuries when responding to defense counsel's summary judgment motions. As we have seen time and time again, evidence of a disc herniation is not enough to be considered a "serious injury" in the absence of objective testing. Now add carpel tunnel syndrome to the list. See Jacobs v. Slaght in today's edition.:

 

"The mere existence of carpal tunnel syndrome is not evidence of a serious injury in the absence of objective testing of the extent and duration of the alleged physical limitations resulting from the injury (see Patterson v. N.Y. Alarm Response Corp. ___ AD3d ___ [2d Dept, Nov. 13, 2007]; Tobias v Chupenko, 41 AD3d 583, 584; Yakubov v CG Trans Corp., 30 AD3d 509, 510; Kearse v New York City. Tr. Auth., 16 AD3d 45, 49)."  Start by making sure the doctor's report is affirmed.

 

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

 

We salute Christian Kent Nelson, a high school teacher, who invented the Eskimo Pie in Onawa, Iowa in 1919 as January 24th is, of course, National Eskimo Pie Patent Day.  On January 25th, Friday, we celebrate the 455th wedding anniversary of Henry the Eighth and Ann Boleyn.  Don't forget to send a card. Who can forget his immortal words: 

I'm Henry the Eighth I am
Henry the Eighth I am, I am
I got married to the widow next door
She's been married seven times before
And every one was an Henry (Henry)
She wouldn't have a Willy or a Sam (no Sam)
I'm her eighth old man, I'm Henry
Henry the Eighth I am. 

Rumor has it that the second verse was same as the first.

 

What can we offer you in today's issue?

 

  • Excuses for Late Notice Must be Reasonable
  • Court Mistakes Apples for Oranges; Holds that Failure to Cite Ambiguous Language in Disclaimer Letter Waives Coverage Defenses
  • Arbitrator Misconduct Difficult to Prove
  • Where There May be No Under-insurance Coverage in Play Because Accident May have Occurred Outside Vehicle, Untimely Application to Stay May Still be Considered.  Coverage Cannot be Created Where None Exists
  • Nobody Talks; Agent Walks
  • Crawford & Company had No Duty to Insured to Notify Excess Carrier
  • Does Blanket Additional Insured Status Exist for Owner and General Contractor?  It Depends on Underlying Contractual Promise to Provide Insurance and Question of Fact Precludes Summary Resolution
  • Judicial Attack on Uninsured Motorist Arbitrator's Award Based on Bias Fails
  • In Peculiar Decision, Court Holds that Insureds' Failure to Give Notice of Lawsuit is Excused if the Insureds were Not Properly Served  

STAROSIELEC'S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT
Mark Starosielec
[email protected]

 

  • Day Late and a Dollar Short: Timing and No Issue of Fact Doom Plaintiff's Lawsuit
  • Plaintiff's Self-Imposed and Unrelated Restrictions Leads to Summary Judgment
  • Court to Defendants: Address Plaintiff's SI Claims and Examine Plaintiff Soon
  • Serious Injury By Numbers: Assigning Numerical Value to Tests on Plaintiff is Not Enough
  • Gap in Medical Treatment Leads to Another Reversal of a Supreme Court Order
  • Failure to Eliminate All Issues of Fact Keeps Plaintiff's Lawsuit Alive
  • Doctors: Make Sure Your Initial Conclusions Don't Contradict Your Testing Results!
  • Plaintiff's Prior Accident Clouds Complaint as SJ is Granted
  • Show, Don't Tell: Defendants' Doctors Failure to Show their Work Leads to SJ Denial
  • Existence of Carpel Tunnel Syndrome is Not Enough to Be Considered a Serious Injury
  • To Be Brief, Summary Judgment is Denied
  • Got Evidence? Don't Wait to Submit it in Opposition to Summary Judgment Motion
  • A Tear in the Tendon of a Knee is Not Necessarily a Serious Injury 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]


Arbitration

 

  • Applicant Cannot Recover Amount Paid to Satisfy Lien Asserted by Private Health Insurer Out of Personal Injury Proceeds
  • Applicant's Fight with a Vehicle's Occupant and no Contact with the Vehicle is not an Occurrence and Excluded Under the Policy
  • Nine and One half Month Chiropractic Treatment Gap with No Explanation Renders Treatment not Medically Necessary

Litigation

  • Denials' Wording Provided Sufficient Factual Basis for Denial
  • Vacated Arbitration Award Reversed; Plaintiff Failed to Submit All Documents to Support Case
  • Arbitration Award Confirmed in Insurer's Favor
  • Summary Judgment Denied as to Plaintiff Due to Insufficient Affidavit Regarding Business Records
  • Petitioner Failed to Demonstrate Arbitrator Bias to Vacate Award in Insurer's Favor
  • Attorney's Fees Awarded on Per Claim Basis - What's a Claim? 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

  • Despite being the Same Incident, Res Judicata Does Not Apply to Lawsuits where Different Claims and Different Harms are in Issue
  • Question of Fact Precludes Summary Judgment
  • Unauthorized Payment to Customer, Vitiates Insured's Claim for Coverage
  • Motion to Strike Granted After Two Years, and SIXTEEN Attempts, at an IME

EARL'S PEARLS

Earl K. Cantwell, II

[email protected]

 

New Court Rule Requires Playing Nice with Lawyers and Other Children

 

Keep those great comments coming in.

 

Dan

New Page 2

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

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

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

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

Jody E. Briandi
Steven E. Peiper

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

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

Index to Special Columns

 

Starosielec’s Serious Side of “Serious Injury”

 Audrey’s Angles on No Fault

Peiper on Property
Earl’s Pearls

Across Borders

 

1/24/08            Tower Insurance Company v. Dyker Contractors, Inc.
Appellate Division, First Department
Excuses for Late Notice Must be Reasonable
Here, the insured delayed nine months before notifying Tower of the occurrence.  The accident occurred when a stairway collapsed on a site where the insured was the general contractor.  The GC’s foreman notified his boss of the accident on the day it occurred and the injured party appeared, shortly thereafter, with a cast of his leg.

Editor’s Note:  Attaboy Max. 

 

1/22/08            Liberty Mutual Fire Insurance Co. v. National Casualty Co.

Appellate Division, Second Department

Court Mistakes Apples for Oranges; Holds that Failure to Cite Ambiguous Language in Disclaimer Letter Waives Coverage Defenses

Liberty denied coverage based on a part of the policy that limited coverage.  The denial was in the nature of a limitation of coverage and not an exclusion. The court held that under Section 3420(d), failure to cite an exclusion in a disclaimer letter can result in a waiver of coverage.  However, the same rules do not apply where there is a limitation of coverage. So, for example, if there is a limitation on the amount of coverage, or the kind of vehicles included in the grant of coverage, the failure to raise that limitation will not be waived.

 

No problem so far.

 

Then the court took a wrong turn.  It held that  the policy was ambiguous as to whether the auctioneers were covered by the policy. OK.  The court then held that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer.  Surely, that’s the rule.

 

But then the court held that where the policy is ambiguous regarding the "extent of coverage," the insurer must issue a timely disclaimer under Insurance Law § 3420(d) and cited to two cases that did not hold that at all including Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 370-371.  Sorry, court.  That is not the rule of law.

 

The court held that since the defendant did not issue a timely denial of coverage, and the ambiguity in coverage is construed against it, thus affording coverage under its policy to the plaintiffs. 

 

1/22/08            In the Matter of Progressive Northeastern Insurance Company v. Gigi

Appellate Division, Second Department
Arbitrator Misconduct Difficult to Prove
The appellant failed to demonstrate, by clear and convincing evidence, that the arbitrator committed misconduct. An offer to grant an adjournment conditioned upon the appellant's counsel's payment of the appearance fee of his adversary's expert, was reasonable and the arbitration award is not to be vacated
.

1/22/08            In re Continental Casualty Company v. Lecei

Appellate Division, First Department

Where There May be No Underinsurance Coverage in Play Because Accident May have Occurred Outside Vehicle, Untimely Application to Stay May Still be Considered.  Coverage Cannot be Created Where None Exists.
This case involved an application to stay an underinsured motorist’s arbitration (SUM).  Continental issued a policy of insurance to Welsbach Electric Corp., Lecei’s employer. Not being a named insured under the policy, Lecei is only entitled to SUM coverage if he were occupying the Welsbach-owned truck. There are questions of disputed facts as to whether or not he was occupying the truck.  

While it appeared that the application for a stay was untimely filed (beyond 20 days), the court still sent the matter back for a hearing on whether or not the injuries occurred while the Lecei was occupying a truck or not.  If he was not occupying a truck, the carrier cannot be compelled to arbitrate the SUM claim because the parties did not agree to arbitrate claims where the injuries did not occur within the vehicle.

Editors Note:  This is similar to a Second Department decision we reported on back in June 2001 (and I thought the memory was the first thing to go):

6/18/01:         Matter of State Farm Mutual v. Mandala
Appellate Division, Second Department
Late Petition to Stay Arbitration Entertained where Claimant Not Insured under Policy
In this action to stay arbitration for uninsured motorist benefits, insurer filed its petition beyond the statutory time period.  As a result, claimant sought dismissal.  Court held that an application to stay filed after the statutory time period may be entertained when it is based on the ground that the parties did not agree to arbitrate a claim for which no coverage was provided under the policy.  Here, the claimant did not qualify as an insured under the policy.  As such, there was no agreement between her and the carrier to arbitrate.

1/17/08            NWE Corp. v. Atomic Risk Management of New York, Inc.
Appellate Division, First Department
Nobody Talks; Agent Walks
No proof offered that agent was requested to secure greater coverage or that there was a duty to do so.  Errors and omissions claim against agent thereby fails.

 

1/17/08            Columbia Energy Group v. Fisher and Crawford & Company
Appellate Division, First Department
Crawford & Company had No Duty to Insured to Notify Excess Carrier

Crawford & Company’s only obligation with respect to excess coverage was to notify the regional office of AIG if a lost potentially implicated excess coverage.  Once it did that, its responsibilities were complete.  It had no duty to the insured – except as specified in the service agreement -- and no duty to notify the excess carrier’s directly.

1/15/08            The Insurance Company of New York v. Central Mut. Insurance Company
Appellate Division, First Department
Does Blanket Additional Insured Status Exist for Owner and General Contractor?  It Depends on Underlying Contractual Promise to Provide Insurance and Question of Fact Precludes Summary Resolution
On January 23, 2004, employee of Calleo Construction brought a construction site lawsuit against Congregation the property owner, Calleo, the general contractor, and S & S, one of Calleo’s subcontractors.  The Congregation and Calleo, and their liability carrier then brought this declaratory judgment action against Central Mutual Insurance Company (Central) claiming that (a) the contract between Calleo and S & S required Calleo to purchase a CGL policy naming the owner and the general contractor to be named as additional insureds.

In fact, there was a blanket additional insured endorsement in the policy which defined as an insured "any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy" and the usual confirming Certificate of Insurance was issued.

Central argues that the S & S agreement with the GC did not require that S & S named the owner and GC as additional insureds, so the policy endorsement did not apply and, of course, that the Certificate could not change the terms of the policy.

The plaintiffs countered with an argument that it was always the intent of the subcontract to require that the subcontractor provide additional insured status

Plaintiffs opposed the motion and cross moved for summary judgment declaring either that the Congregation and Calleo were additional insureds on Central's policy or were entitled to coverage pursuant an indemnification clause in the subcontract between Calleo and S & S. In support of their motion, plaintiffs submitted the affidavit of Gino Calleo, president of Calleo Development Corp., averring that it was always the intent of the subcontract between Calleo and S & S that the latter would obtain liability insurance naming both Calleo and the Congregation as additional insureds.

The appellate court found that there was an issue of fact as to whether the subcontract imposed an obligation on S & S to obtain insurance for either the owner or the general contractor, or both of them.  Since the matter came up by virtue of competing motions for summary judgment, the motions should have been denied and the case sent back for a trial on the parties’ intent.

1/15/08            In the Matter of Pedro Aviles v. Allstate Insurance Company
Appellate Division, Second Department
Judicial Attack on Uninsured Motorist Arbitrator’s Award Based on Bias Fails

An attack on an Uninsured Motorists arbitrator’s award, based on bias of the arbitrator fails where the lawyer who signed the petition was not present at the arbitration. Allstate opposed the petition with an affirmation of counsel who was present at the arbitration. No transcript of the arbitration appears in the record, and, accordingly, the attack was unsuccessful.

 

1/15/08            In the Matter of Allstate Insurance Company v. Berger

Appellate Division, Second Department
In Peculiar Decision, Court Holds that Insureds’ Failure to Give Notice of Lawsuit is Excused if the Insureds were Not Properly Served
In 1999, Berger, in his car, was involved in an accident driven by one Khan, who was driving a car owned by Full Moon.  The Full Moon car was insured by American Transit and required Full Moon to provide timely notice of the lawsuit.  In 2001, Berger commenced an action against Full Moon and Khan, seeking to recover damages for injuries that he allegedly sustained as a result of the accident and eventually obtained a default judgment against both, as they failed to appear.

 

Berger then brought a direct action American Transit, seeking to enforce the judgment obtained against the owner and driver.  American Transit denied coverage, in September 2002, based on late notice by Khan, Full Moon and the plaintiff, Berger. The trial court

 

Faced with what appeared to now be an insured claim, Berger files a claim for Uninsured Motorists benefits with Allstate, his carrier.  Allstate moved to permanently stay the arbitration, claiming that American Transit’s disclaimer was invalid. The lower court found that Berger did not properly serve Khan and Full Moon in the personal injury action so Khan and Full Moon could not have breached their duty to provide notice of the lawsuit and accordingly, their notice was not late (ruling in favor of Allstate).

 

The Appellate Division affirmed.  Since American Transit was established to be the carrier AND since American Transit did not prove that notice was given late, coverage is established.  Whether Berger’s separate notice was or was not timely becomes inconsequential.

 

Editor’s Note:  This is a fundamentally unsound decision.  The liability policy does not require notice be given of a “jurisdictionally valid” or a “properly served” lawsuit.  It requires notice of a lawsuit.  The court opinion does not indicate that the insured were unaware of the lawsuit (which might well excuse their obligation to give notice) only that they were not properly serviced.  If they knew of the lawsuit, proper service or not, the policy obligated them to give the carrier timely notice.  Lack of proper service of a lawsuit is a defense that can be waived by non-appearance so it is critically important that a carrier be placed on notice of ANY lawsuit, whether or not it’s insured in properly served.

 

STAROSIELEC’S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT
Mark Starosielec
[email protected]

 

1/22/08            Berkowitz v. Taylor

Appellate Division, Second Department

Day Late and a Dollar Short: Timing and No Issue of Fact Doom Plaintiff’s Lawsuit

While the notice of appeal from the lower court’s most recent judgment was premature, plaintiff was unable to raise a triable issue of fact in any event. The Appellate Division held the lower court correctly determined that the defendant established, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In opposition, the plaintiff failed to raise a triable issue of fact as to whether her present complaints were causally related to the accident of June 2001, which is the subject of this action, and not a subsequent accident in October 2001. In order to raise an issue of fact under the 90/180 category, the plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration, based upon a recent examination of the plaintiff. She was unable to do so.


Editor’s Note: 
Attorney Jonathan Dachs was the hero on this one.  If you don’t read his insurance column in the New York Law Journal, you’re missing one of the best around.

 

1/22/08            Gonzalez v. Fiallo

Appellate Division, Second Department

Plaintiff’s Self-Imposed and Unrelated Restrictions Leads to Summary Judgment

The Appellate Division affirmed a lower court order which granted defendant’s motion which was for summary judgment dismissing the complaint. The defendant established her prima facie entitlement to judgment as a matter of law by establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Any restrictions in motion noted by the defendant’s neurologist were adequately explained as self-imposed and unrelated to the accident. On appeal, the plaintiff’s unaffirmed and uncertified reports and records were without probative value.

 

 

1/22/08            Jensen v Nicmanda Trucking, Inc.

Appellate Division, Second Department

Court to Defendants: Address Plaintiff’s SI Claims and Examine Plaintiff Soon
Here, the plaintiff successfully appealed an order which had granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). On appeal, the Appellate Division held the defendants failed to make a prima facie showing. The defendants' motion papers did not adequately address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a serious injury under the 90/180 category. The plaintiff stated he was out of work for approximately five months. The subject accident occurred on January 5, 2005, and the plaintiff was not examined by the defendant’s examining orthopedic surgeon until June 19, 2006, approximately 1½; years after the accident. Despite these allegations of serious injury, the defendant’s expert did not address this category of serious injury in his report.  When a defendant does not meet this initial burden, the court need not consider whether the plaintiff’s opposition was sufficient to raise a triable issue of fact.


1/22/08            McKenzie v Redl
Appellate Division, Second Department

Serious Injury By Numbers: Assigning Numerical Value to Tests on Plaintiff is Not Enough

In two related actions, the plaintiff successfully appealed a lower court order which had granted the defendants’ respective motions for summary judgment dismissing the complaints on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The two motor vehicle accidents occurred on December 19, 2001 and June 26, 2004.

The defendants in the first accident submitted, inter alia, affirmed medical reports from Dr. George Steiner, who examined the plaintiff after the first accident. Ultimately, Steiner concluded that the injuries sustained in the first accident were limited to “acute cervical sprain” and “acute lumbrosacral sprain.” Although Dr. Steiner assigned various numeric values to range-of- motion tests he performed on the plaintiff, he failed to compare those numeric findings to what is deemed normal. Further, although the findings appear to indicate various decreases in the plaintiff's ranges of motion, Steiner established no basis upon which it might be concluded that such decreases were neither caused nor exacerbated by the first accident.

The defendants in the second accident submitted an affirmed medical report from Dr. Robert Hendler. In the report, Hendler recounted the significant medical history and treatment of the plaintiff’s back and neck. Ultimately, Hendler concluded that the injuries incurred in the second accident were limited to “cervical and lumbrosacral sprain, with a temporary aggravation of a prior neck and lower back condition.” Similarly, although he assigned numeric values to other physical tests performed on the plaintiff, he failed to compare those numeric values to what is deemed normal. Absent such a comparative quantification of his findings, it cannot be concluded that the range of motion in the plaintiff's cervical and lumbar spine was normal, or that any limitations were mild, minor, or slight as to be considered insignificant within the meaning of the no-fault statute.

 

1/22/08            Ning Wang v Harget Cab Corp.

Appellate Division, Second Department

Gap in Medical Treatment Leads to Another Reversal of a Supreme Court Order
Continuing a trend this week, the Appellate Division reversed a lower court order which had denied the defendants’ motion for summary judgment. The defendants made out their prima facie case showing that the plaintiff did not sustain a serious injury. Contrary to the conclusion of the lower court, the plaintiff’s opposition papers were insufficient to raise a triable issue of fact.

The plaintiff’s treating physiatrist’s affirmations were insufficient in that they failed to account for the 10-month gap between the physiatrist’s last treatment of the plaintiff and the plaintiff’s examination on January 9, 2007. There was no evidence that the plaintiff underwent any medical treatment in this time period and no explanation as to why none was appropriate.

1/22/08            Olic v Pappas

Appellate Division, Second Department

Failure to Eliminate All Issues of Fact Keeps Plaintiff’s Lawsuit Alive

In another reversal, the plaintiff successfully appealed a lower court order which granted the motion of the defendants for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The Appellate Division held the evidence which the defendants submitted failed to eliminate all issues of fact as to whether the plaintiff sustained a fracture of the cervical region of the spine as a result of the subject motor vehicle accident. Accordingly, it was not necessary to consider the sufficiency of the plaintiff’s opposition papers.

 

1/22/08            Rashid v Estevez

Appellate Division, Second Department

Doctors: Make Sure Your Initial Conclusions Don’t Contradict Your Testing Results!

In yet another reversal, the defendant's successfully appealed a lower court order which had denied its motion for summary judgment. Here, the defendant made a prima facie showing. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s treating physician’s initial conclusion that the plaintiff suffered from lumbar and cervical radiculopathy was contradicted by his own testing results which revealed that the plaintiff did not suffer from those injuries. Additionally, plaintiff’s treating chiropractor failed to address the fact that the plaintiff had been injured previously in a football game, nor did he address the finding of the defendant’s examining radiologist that the plaintiff suffered from pre-existing degenerative disc disease in the lumbar region of the spine.

 

1/15/08            Bacchi v. Paris

Appellate Division, Second Department

Plaintiff’s Prior Accident Clouds Complaint as SJ is Granted

Here, the plaintiffs unsuccessfully appealed a lower court order which had granted the separate motions of the defendants for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants established a prima facie case that the plaintiff did not sustain a serious injury as a result of the subject accident on August 16, 2002, through the submission of MRI reports of the plaintiff’s cervical and lumbar spines. In opposition, the plaintiff failed to present admissible evidence sufficient to raise a triable issue of fact as to whether her injuries were causally related to the accident on August 16, 2002, rather than to an accident which occurred years earlier.

1/15/08            Giammanco v. Valerio

Appellate Division, Second Department
Show, Don’t Tell: Defendants’ Doctors Failure to Show their Work Leads to SJ Denial

Failing to compare findings to what is considered normal doomed defendants’ summary judgment motion as plaintiffs successfully appealed a lower court order which had granted summary judgment dismissing the complaint. Contrary to the lower court’s determination, the defendants failed to establish, that the plaintiff did not sustain a serious injury. The defendants relied on the affirmed medical reports of an examining orthopedist and neurologist. In the affirmed medical report of the examining orthopedist, he set forth lumbar spine range of motion findings, but failed to compare those findings to what is normal. He also noted a significant limitation in the plaintiff’s lumbar rotation. In the report of the examining neurologist, he concluded that the plaintiff had “full” range of motion in the cervical and lumbar regions of her spine, yet failed to set forth the objective test or tests he performed.

 

1/15/08            Jacobs v. Slaght

Appellate Division, Second Department

Existence of Carpel Tunnel Syndrome is Not Enough to Be Considered a Serious Injury

The Appellate Division affirmed the lower court order granting defendants’ motion for summary judgment which dismissed the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendant met his prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff contends that she sustained a significant limitation of use of her left wrist, yet she failed to provide any medical reports showing the degree or extent of any physical limitation in the use of her left wrist. The mere existence of carpal tunnel syndrome is not evidence of a serious injury in the absence of objective testing of the extent and duration of the alleged physical limitations resulting from the injury.

 

1/15/08            Jean v. Lima

Appellate Division, Second Department
To Be Brief, Summary Judgment is Denied

Without getting into all the details, the Appellate Division affirmed a lower court order, which denied defendant’s motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d). Brief and to the point, while the defendant made a prima facie showing, the plaintiffs raised a triable issue of fact in opposition.

 

1/15/08            Johnson v. Charles

Appellate Division, Second Department
Got Evidence? Don’t Wait to Submit it in Opposition to Summary Judgment Motion

Here, the plaintiff had appealed a lower court order which denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to renew her opposition to defendants’ summary judgment motions. Initially, the plaintiff’s motion, denominated as one for leave to renew and reargue, was in actuality one for renewal only. However, the plaintiff failed to offer reasonable justification as to why evidence proffered in support of her motion was not submitted at the time of the defendants’ prior motions for summary judgment. As such, the Appellate Division affirmed the lower court order granting summary judgment.

 

1/15/08            Shvartsman v. Vildman

Appellate Division, Second Department
A Tear in the Tendon of a Knee is Not Necessarily a Serious Injury

In a lengthy opinion, the Appellate Division reversed a lower court order which denied defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants made a prima facie showing. In opposition, the plaintiff failed to raise a triable issue of fact.

 

Dr. Turovsky, the plaintiff’s examining physician, concluded that the plaintiff sustained permanent injuries and limitations to his cervical spine and left knee. While there was evidence in that report of range-of-motion limitations in the plaintiff’s cervical spine that was based upon a recent examination, neither the plaintiff nor Dr. Turovsky proffered any competent medical evidence that showed range-of-motion limitations in the plaintiff’s cervical spine or left knee that were contemporaneous with the subject accident. The submission of the plaintiff’s MRI reports merely showed that the plaintiff had herniated discs in his cervical spine and a partial tear of the medial meniscus of the left knee. The mere existence of a herniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration.

 

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

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

 

Arbitration

 

1/22/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Applicant Cannot Recover Amount Paid to Satisfy Lien Asserted by Private Health Insurer Out of Personal Injury Proceeds.

The Applicant, eligible injured person (“EIP”), was involved in an April 19, 2004, motor vehicle accident and subsequently came under the care of Daniel Cox, D.C.  She treated with Mr. Cox from May 7, 2004 to August 26, 2005, after her chiropractic care was denied resulting in $1,854.38 in unpaid bills.  Likewise, the Applicant treated with Dr. Huckell who performed cervical spine surgery which was denied by the no-fault carrier.  The Applicant also treated with Dr. Vullo and those bills were denied by the no-fault carrier.

The Applicant submitted her unpaid bills to her private health insurer who paid them.  The health insurer proceeded to assert a lien against the Applicant’s personal injury lawsuit.  The Applicant apparently compromised the lien and paid over $10,000.00 to the private health insurer from her personal injury proceeds.

The insurer initially denied the Applicant based upon a chiropractic independent medical examination (“IME”) and subsequently denied the remainder of the treatment at issue in this arbitration based upon an orthopedic IME.  All of the denials were found to be timely.

The insurer argued that the payments the Applicant made to satisfy the liens were voluntary payment and not subject to recovery in this arbitration.  In other words, the payments Applicant made were for basic economic loss which is not recoverable in a third party action and any asserted lien on the proceeds of the third party action for basic economic loss is invalid and unenforceable.  The insurer submitted three arbitration awards supporting this proposition and there was no contrary authority submitted by Applicant.

The arbitrator agreed with the insurer’s argument and further noted that while he empathized with the murky waters Applicant faced, the health care insurer should have submitted this controversy to intercompany arbitration under Insurance Law 5105.

Further, the arbitrator advised Applicant that even though he felt that this accident aggravated a pre-existing condition warranting surgery he could not find any invalid denials to permit payment by the insurer for the surgery.

Finally, the arbitrator reiterated that an applicant must continue submitted bills to the no-fault insurer for payment even after a global denial.

1/11/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Applicant’s Fight With a Vehicle’s Occupant and no Contact with the Vehicle is not an Occurrence and Excluded Under the Policy.

The Applicant, eligible injured person (“EIP”), sought no-fault benefits after he engaged in a fight in the parking lot with another individual who was in his truck.  The insurer properly denied no-fault benefits on the ground that there was no “occurrence” and the exclusion for bodily injury intentionally caused by an insured person applied.

The Applicant was the leader of four person band that played in Buffalo.  While the band was performing at a local bar, the customers would buy the band shots of Jack Daniels.  The band would line up the shot glasses for the owner to keep a record.  There was conflicting testimony but it is estimated that between six and fourteen shots were consumed by either the Applicant or by the Applicant and at least two band members during the evening.  (We know that this story is not going to end well). 

When the band finished playing for the evening they proceeded to load up their equipment.  During that time, a dispute occurred between the Applicant (the band’s leader) and the drummer over the drummer failing to help load the amplifiers in the Applicant’s truck.  (It’s always the drummer isn’t it.  The drummer never listens.) 

This dispute escalated and what occurred next had different versions (Isn’t that the case when Jack Daniels is involved?).  The arbitrator reported that according to the drummer, he was in his truck with his girlfriend in the process of driving out of the parking lot when the Applicant approached him signaling him to stop.  The two engaged in a heated conversation during which the drummer advised he was quitting the band (of course).  The Applicant attempted to punch the drummer through the truck’s open window.  The drummer put his truck in reverse and sped away.  The vehicle did not strike the Applicant and the Applicant did not fall to the ground.

The drummer’s story was supported by his girlfriend and another band member.  The arbitrator found the drummer’s story more credible and also noted that while the Applicant’s girlfriend witnessed this she never supplied an affidavit to stand by her man.  The arbitrator made a final observation that the Applicant during the hearing had to be repeatedly cautioned to keep his outbursts under control.  It was noted that these did not help his cause.

1/11/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

Nine and one half Month Chiropractic Treatment Gap with No Explanation Renders Treatment not Medically Necessary.

The Applicant, eligible injured person (“EIP”), sought reimbursement for chiropractic care purportedly rendered as a result of a March 23, 2005, motor vehicle accident.  The insurer denied the Applicant chiropractic care based upon an independent medical examination conducted by John Gaiser, D.C.  Further, denials for treatment from December 1, 2006 through February 9, 2007 were also denied based upon the one year rule.

The arbitrator noted that four of the alleged service dates were not submitted to the insurer for payment.  The Applicant did not submit evidence that the bills were timely submitted and these claims were denied.

The chiropractic treatment rendered from September 16, 2005 through February 17, 2006, was determined to be properly denied based upon the IME report of Mr. Gaiser.  The arbitrator noted that while the Applicant had subjective complaint the records Applicant submitted failed to document objective finds that refuted Mr. Gaiser’s conclusions.

Finally, the Applicant’s claim for chiropractic treatment from December 1, 2006 through February 9, 2007, was denied for failure to demonstrate that the treatment was medically necessary and causally related to the accident.  The arbitrator noted that the insurer’s one year defense could not be upheld.  The arbitrator reasoned that an injury is not ascertainable if no evidence of it is submitted to the insurer within a year of the accident.  The example provided was that only bills for treatment for a cervical spine injury are submitted within one year of the accident but three years after the accident a bill is submitted for treatment to the knee.  The knee treatment would not be covered as it was not ascertainable within a year.  However, if the subsequent bills submitted were the cervical spine instead of the knee they would be covered because there was initially treatment within one year of the accident to the cervical spine. 

Despite this finding, the arbitrator held that the Applicant had not demonstrated that the chiropractic treatment with a 9.5 month gap was medically necessary or causally related to the accident.

Litigation

1/18/08              East Coast Med. Care, P.C. v. State Farm Mut. Auto Ins. Co.,
Appellate Term, First Department

Denials’ Wording Provided Sufficient Factual Basis for Denial.

Plaintiff’s motion to preclude the defendant’s denial of claim forms should have been denied.  The defendant’s denials provided the plaintiff with sufficient factual basis for the denial as the denials stated each claim was denied based upon an independent consultant report.

 

1/16/08              Queens Com. Med., P.C. v. Motor Vehicle Acc. Indem. Corp.,
Appellate Term, Second Department

Vacated Arbitration Award Reversed; Plaintiff Failed to Submit All Documents to Support Case.

The Court determined that the lower court improperly vacated a Master Arbitrator’s award in favor of the defendant.  The Court reasoned that the Master Arbitrator’s award was not arbitrary, capricious or irrational.  Further, the plaintiff’s petition did not include the defendant’s denial of claim forms.  Accordingly, the record did not support the determination that the arbitrator’s decision was based upon a precluded defense.

 

1/16/08              563 Grand Med., P.C. v. Progressive Northeastern Ins. Co.
Appellate Term, Second Department

Arbitration Award Confirmed in Insurer’s Favor.

Yet again the Court declined to vacate a Master Arbitrator’s award in favor of the defendant.  The Court reasoned that the Master Arbitrator’s award was not arbitrary, capricious or irrational in finding that the plaintiff could not recover for work that an independent contractor performed.

 

1/16/08              Delta Diagnostic Radiology, P.C. v.  Progressive Cas. Ins. Co.
Appellate Term, Second Department

Summary Judgment Denied as to Plaintiff Due to Insufficient Affidavit Regarding Business Records.

Plaintiff’s summary judgment motion was denied as it failed to submit a sufficient affidavit from one of its officers to admit the documents annexed to plaintiff’s papers as business records.

 

1/15/08              In the Matter of Pedro Aviles v. Allstate Ins. Co.
Appellate Division, Second Department

Petitioner Failed to Demonstrate Arbitrator Bias to Vacate Award in Insurer’s Favor.

Petitioner sought to vacate an uninsured arbitration award in respondent’s, insurer, favor on the basis that the arbitrator engaged in partiality and misconduct.  The petitioner submitted an affidavit from an attorney who did not attend the arbitration.  The insurer’s counsel, who attended the arbitration, asserted that counsel attended the arbitration and the arbitrator did nothing more than make credibility assessments.  Neither party submitted a transcript of proceeding but it is not clear that a transcript was produced of the proceeding.

The Court indicated that while the lower court cited CPLR section 7511(b)(ii) and held that the arbitrator was biased it presumed that the lower court really relied upon CPLR section 7511(b)(1)(ii).  The Court held that the petitioner failed to demonstrate bias as the award does not disclose arbitrator bias.  Further, the petitioner failed to submit an affidavit from counsel who appeared at the arbitration which did not help his case.

12/27/07              LMK Psychological Services, P.C. v.

State Farm Mut. Auto. Ins. Co., Appellate Division, Third Department

Attorney’s Fees Awarded on Per Claim Basis – What’s a Claim?

I apologize for this one as I missed it for our last issue.  Many of you have probably reviewed this decision and cringe when you hear the case name.  However, it really only reiterates case law produced by the lower courts regarding whether an attorney fee is recoverable on a per claim basis or per assignor basis.  The question it creates is how is a claim defined?  The insurance regulations contain no definition.  This decision provides no guidance on the issue either.  Further, this issue of interest accrual was not preserved for the Court’s decision and any discussion on this issue is purely dicta and not controlling authority.

 

For those who have not read this decision, the defendant appealed the lower court’s decision granting plaintiff summary judgment with interest and attorney’s fees.  The Appellate Division held that the issue of when interest accrues on a claim was not preserved for its review.  Yet, the Court provides its own opinion on the matter finding that the argument is meritless.  The Court opined that interest on an untimely paid no-fault claim accrues 30 days after the claim was properly presented for payment.  However, if the claim had been timely denied then interest would be tolled 30 days after plaintiff received the denial until plaintiff commenced the litigation. 

 

Then the Court addressed the issue of calculating attorneys’ fees.  The Court held that attorneys’ fees are awarded on a per claim basis and not a per assignor basis.  The Court went so far as to state that the Superintendent of Insurance’s opinion letter on this issue dated October 3, 2003:

 

undermines the goal of the no-fault law to fully compensate the claimant for economic loss resulting from the wrongful denial of a claim and wastes judicial assets by encouraging the commencement of multiple actions in order to recover the maximum available counsel fees.

 

Yet, the Court never defines a claim.  I think this issue is still open for interpretation.

 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

01/22/08          Employers’ Fire Ins. Co. v. Brookner

Appellate Division, Second Department

Despite being the Same Incident, Res Judicata Does Not Apply to Lawsuits where Different Claims and Different Harms are in Issue.

By way of background, carrier issued a policy which covered the entire premises owned by its insured.  Defendant Brookner was a tenant on the third floor of the premises.  When a pipe burst inside of defendant’s office, tenants on the first and second floor sustained water damage as a result.

 

Thereafter, the tenant on the second floor (Etkin) commenced an action against both carrier’s named insured (the owner) and Brookner.  This action was resolved by way of stipulation with prejudice when Brookner, without contribution from the owner, reimbursed Etkin for damages sustained when the pipe burst.

 

In the current action, carrier now sues as subrogee of owner to recover from Brookner for the other losses it paid.  Brookner moved for summary judgment against carrier on the basis that carrier’s claims were barred by the doctrine of res judicata.  In short, Brookner’s theory is that because the Etkin action which was resolved with prejudice, and because the current subrogation action arises from the same event, res judicata applied.

 

In denying Brookner’s application, the Second Department noted that for res judicata the lawsuit had to arise from the same harm and same claim.  Here the harm for which recovery was sought was damage to the first floor of the premises (Etkin sought recovery for the second floor).  Moreover, Etkin’s claim was independent of the subrogation claim for first floor damage.  Finally, even though the executed stipulation in Etkin was with prejudice, there was no evidence that carrier intended to forego its subrogation rights.

 

Accordingly, the current action was not barred, and defendant’s motion to dismiss was denied.

 

01/15/08          Simon v. State National Ins. Co.

Appellate Division, Second Department

Question of Fact Precludes Summary Judgment    

Carrier sought dismissal of plaintiff’s Complaint due the insured’s failure to comply with the “Records and Inventory” provision of the policy.  Insured’s opposition created a question of fact as to whether its record keeping procedure was in compliance with the policy.  Accordingly, Trial Court’s grant of Summary Judgment was reversed.

 

Sorry, but that’s all the Second Department gives us.

 

01/15/08          R. Ferraro Collision, Inc. v. Universal Underwriters Ins. Co.

Appellate Division, Second Department

Unauthorized Payment to Customer, Vitiates Insured’s Claim for Coverage

Trial Court’s grant of Summary Judgment on behalf of plaintiff was reversed and defendant’s cross-motion for Summary Judgment granted in its entirety. 

 

The policy at issue contained a provision which required the insured to obtain the carrier’s consent prior to making any payment to a third-party.  Here plaintiff’s president acknowledged that plaintiff reimbursed a customer for the loss of a $134,197 Mercedes-Benz in order to secure a continued business relationship with the customer.

 

The payment by the insured was not done with the consent of the carrier, and as such was in violation of the policy.  Because the insured was unable to submit any evidence to the contrary, the Second Department upheld carrier’s denial.

 

01/23/08          Net v. Poloso

Appellate Division, First Department

Motion to Strike Granted After Two-Years, and SIXTEEN Attempts, at an IME

A bit for the ever expanding potpourri file…

 

In this case, defendant was provided with a “conditional” order striking plaintiffs’ Complaint as a result of plaintiff’s repeated failure to appear at SIXTEEN scheduled Independent Medical Examinations over a two-year period.  In modifying the trial court’s Order, the First Department dismissed plaintiff’s Complaint as result of “[p]laintiffs’ willful and contumacious conduct in delaying and obstructing the disclosure process.” 

 

In so holding, the First Department declined to accept plaintiff’s proposition that the “substantial and unnecessary delay and expense” was “merely ‘the cost’ of defendant “doing business.”  Instead, the First Department noted the delay “reflects plaintiffs’ blatant disregard of statutory disclosure requirements.”

 

We should think so!


EARL’S PEARLS

Earl K. Cantwell, II

[email protected]

 

New Court Rule Requires Playing Nice with Lawyers and Other Children

 

Attorneys are frequently confronted with a caustic or abusive counsel asking questions during a deposition, or on the flipside an equally acerbic counsel defending a witness.  Horror and war stories are legend about bad conduct by both questioning and defending counsel, and attorneys for both plaintiffs and defendants.  In an effort to force lawyers to behave and play nice with other children, a new Uniform Rule for the Conduct of Depositions was recently adopted for the Trial Courts in New York State codified in Section 202.221 of the Uniform Rules.  Many of these Rules have been “best practices” for lawyers and applied in other jurisdictions.  Many of them were also adopted locally, such as in the Western District of New York by a Magistrate’s “Guidelines” for the Conduct of Depositions.  Putting them into an official court rule, however, is something new and represents an earnest effort by the Court administration system to police deposition conduct, and established Uniform Rules for all lawyers in all of the trial court parts. 

           

Rule 221.1 states that all objections made at a deposition shall be noted by the reporter, before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objection and the right to apply for appropriate relief under Article 31 of the CPLR.  In short, make sure any objection is noted and clearly stated on the record, but with few exceptions noted below, the Rule is that, subject to the objection, the question will stand and an answer should be given.  Obviously, this Rule is an attempt to restrict the curt “direction not to answer” response. 

           

Rule 221.1(b) deals with equally disturbing “speaking objections” and begins by stating that every objection raised during the deposition shall be “stated succinctly”.  This is an attempt to stop defending counsel from giving a long, argumentative diatribe against the questioner, the question itself, the question’s relevance to the case, the color of the questioner’s tie, and other supposedly pertinent matters.  In short, the objection must be short.  The Rule goes on to say, also, that objections must be framed to not suggest an answer to the witness.  This is intended to address the other problem with the “speaking objection” wherein with a wink, a nod, and a nudge in the ribs, defending counsel as part of his diatribe coaches the witness on what to say in the answer (or what not to say). 

           

Part 221.1(b) further requires that, at the request of the questioning attorney, a party raising an objection must make a clear statement as to any defect in form or other basis of error in the question.  This is generally in accord with prior practice where questioning counsel is entitled, upon encountering an objection as to form, to have the objecting attorney place on the record the basis for the objection so the questioning attorney can determine the nature of the objection and, if appropriate, alter the question to remove the basis for any objection. 

           

Obviously hearing of many war stories presented by trial counsel, the new court rule further requires that, during the course of the deposition, persons in attendance shall not make statements or comments that “interfere with the questioning”.  A related topic is having discussions in the room or outside of the room with the witness, which is also dealt with in the Rule and more about that later.  Overall, the general tenor of the Rule is an attempt to make questioning at a deposition as much like trial testimony as possible with the sole albeit major difference being the absence of the Judge to rule on objections, maintain order, and make the children behave. 

           

The Rule does contain some protections for the witness.  Part 221.2 states that a deponent shall answer all questions at a deposition except to preserve a privilege or right of confidentiality, to enforce a limitation set forth in any court order, or when the question is “plainly improper” and would if answered cause significant prejudice to any person.  Therefore, if a question by its terms or necessary answer would invade attorney client privilege, work product privilege, or other recognized confidence, or if the question is “plainly improper” (which will be of course the next great arena of legal dispute), a party can hold their ground and direct a witness not to answer.  Defending attorneys should note, however, that any direction not to answer must be explained on the record by a succinct and clear statement of the basis for the direction not to answer.  The off-cited, rejoinder that “I don’t have to tell you why” no longer suffices. 

           

The Rule also deals with suggesting answers to witnesses and “woodshedding” them during the course of the deposition.  Part 221.3 deals with communications with the witness.  The Rule states that an attorney shall not interrupt the deposition for the purpose of communicating with the witness unless all parties consent or if the communication is made for the sole purpose of determining whether the question should not answered on one of the grounds set forth in the Rule, such as confidentiality.  Even in the latter case, the reason for the communication must be stated on the record, succinctly and clearly.  This part of the Rule is meant to stop the scenario of counsel and witness taking a break in mid-question, or taking a break just when the questioning gets interesting, to go out in the hall to discuss the case, the question, and their response. 

           

Given the fact that this Rule is new, there may be an early effort by the courts to enforce it and make attorneys comply.  Knowledge of the new Rule will also be helpful for an attorney to impart to your witness, so the witness understands what can and cannot be done or said during the course of the deposition.  At a minimum, the new Rule will probably make for a new series of different war stories and problems in the playground among the unruly and litigious children. 


ACROSS BORDERS

 

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

 

1/22/08            Platics Eng Co. v. Liberty Mutual
Seventh Circuit Court of Appeals
Court Seeks Guidance on Meaning of "Occurrence"

Plenco began manufacturing molding compounds in 1934 and has been named as defendant in hundreds of lawsuits for claims arising from individuals' exposure to the company's asbestos-containing products, which Plenco manufactured from 1950 until 1983. Liberty Mutual provided primary general liability insurance policies to Plenco beginning in 1957. Plenco began purchasing umbrella excess liability policies from Liberty Mutual Liberty Mutual has paid all of Plenco's defense costs, settlements, and judgments stemming from the asbestos lawsuits. Liberty Mutual advised Plenco in 2004 that it would only pay "its proportionate share of reasonable and necessary defense costs, " but has continued to pay all of Plenco's defense costs, settlements, and judgments under a reservation of rights. Plenco filed a complaint in district court, against Liberty and sought a declaratory judgment that Liberty Mutual was obligated, under the terms of the insurance policies purchased by Plenco, to fully defend and indemnify Plenco in connection with all of Plenco's pending and future asbestos-related lawsuits. In response, Liberty Mutual sought an opposing declaration that it was not obligated to pay certain defense and indemnification expenses, including some it had been paying on behalf of Plenco, and that it was entitled to a refund for overpaid amounts. The district court issued a decision which granted in part and denied in part each party's motion for summary judgment. The court concluded that: (1) per the terms of the policies in question, each individual person's injury caused by exposure to Plenco's asbestos-containing products constitutes a separate "occurrence"; (2) when an injury is sustained over numerous, successive policy terms, the policies' non-cumulation provisions--which the court held do not violate Wisconsin Statute § 631.43(1)--limit Liberty Mutual's obligation for an individual claimant's recovery to the maximum amount allowed in a single triggered policy for an occurrence; and (3) under the terms of the policies, Liberty Mutual is obligated to pay all sums accruing from an injury that triggers any one Liberty Mutual challenged the district court's "occurrence" holding and its "all sums" allocation holding. Plenco's cross-appeal challenges the district court's holding on § 631.43(1). All three issues--the definition of "occurrence" in the context of long-tail [*6] exposure injuries, the applicability of § 631.43(1) to successive insurance policies, and the allocation of liability when an injury spans multiple insurance policies--present unsettled questions of state law that will directly affect the outcome of this appeal, and that will undoubtedly affect the outcome of future cases under Wisconsin law. Accordingly, the Court certified the questions to the Supreme Court of Wisconsin.

Submitted by: Debra Herron (McNeer Highland McMunn & Varner, L.C.)

 

1/18/08            Nascimento v. Preferred Mutual Insurance Company
First Circuit Court of Appeals

Total Pollution Exclusion Bars Coverage for Pollution Cleanup Cost and Property Damage Claim
Nascimento purchased property at 239 Hubbard Street, Ludlow, Massachusetts. Nascimento’s property had been part of a larger lot that included the premises at 235 Hubbard Street. The 235 property contained an underground storage tank (“UST”) with a fuel line connecting to the oil furnace at Nascimento’s property. The UST was located immediately adjacent to the foundation of Nascimento’s garage. Nascimento was the sole user of the UST, which stored the home heating oil used to heat his automotive repair business. In November of 1982, Nascimento retired, sold his business, and leased his property. From 1982 to 1997, the lessee purchased heating oil and stored it in the UST for continued heating of Nascimento’s property. The Leals purchased the 235 property. In September of 1997, they applied for a refinancing mortgage loan. The lender instructed the Leals to remove the UST or render it inactive as a condition to financing. The Leals hired an excavating company to remove the UST. During the excavation, the Leals discovered that oil had leaked through a hole in the UST causing substantial contamination of the soil. Thereafter, the Massachusetts Department of Environmental Protection issued a Notice of Responsibility to the Leals and Nascimento ordering them to clean up the spill. The Leals asked Nascimento to take responsibility for the loss, but he refused. The Leals undertook the clean-up of the oil spill themselves and subsequently sued Nascimento for the costs. Preferred Mutual insured Nascimento and filed a declaratory judgment action relative to duty to indemnify and defend. The district court granted Preferred's motion for summary judgment holding that: (1) the home heating oil is a pollutant; (2) all of the Leals’ claims against Nascimento involved remediation costs incurred by the Leals in cleaning up the oil spill; and (3) since the loss is not covered, Preferred Mutual has no duty to defend or indemnify Nascimento in the Leal suit. Nascimento v. Preferred Mut. Ins. Co., 478 F. Supp. 2d 143 (D. Mass. 2007). The district court based its decision solely on section f(2)(a) of the total pollution exclusion. The First Circuit affirmed the decision of the district court, with different reasons.

Submitted by: Debra Herron (McNeer Highland McMunn & Varner, L.C.) Clarksburg, WV - Posted:

 

Reported Decisions

 

The Insurance Company of New York v. Central Mutual Insurance Company


Gold, Stewart, Kravatz, Benes & Stone, LLP, Westbury
(Robert J. Stone, Jr. of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Jason B. Gurdus of counsel), for
respondents.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 28, 2005, which granted defendants' motion for summary judgment to the extent of dismissing the claims of plaintiff Calleo, and denied plaintiffs' cross motion for summary judgment and to amend the caption with respect to plaintiff calleo, unanimously modified, on the law, without costs, Calleo's claims reinstated, the matter remanded for consideration of the cross motion to amend the caption, and otherwise affirmed.

On January 23, 2004, a personal injury action was brought by an employee of plaintiff Calleo Construction Corp. for injuries sustained during the course of his employment at a construction site owned by plaintiff Congregation Or Zarua. Calleo was the general contractor on the site. Defendant S & S Construction Group was one of Calleo's subcontractors on that site. The personal injury action named the Congregation, Calleo and S & S as defendants.

On December 15, 2004, the Congregation, Calleo and their liability insurer, plaintiff Insurance Corporation of New York, commenced the instant action seeking a declaration that defendant Central Mutual Insurance, S & S's liability insurer, was obligated to defend and indemnify the Congregation and Calleo in connection with the personal injury action. The complaint alleged that the contract between Calleo and S & S required Calleo to purchase a commercial general liability insurance policy, naming as additional insureds the owner, design consultants and their respective partners, directors, officers, employees, agents and representatives, and that it also required S & S to obtain insurance covering the Congregation and Calleo.

The insurance contract between S & S and Central contained an endorsement entitled "Additional Insured - Owners, Lessees or Contractors - Automatic Status when Required in Construction Agreement with You," which defined an insured as "any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy." S & S did obtain a Certificate of Liability Insurance, dated January 29, 2001 (three days after the incident that injured Calleo's employee), naming S & S as the Insured and Calleo as the Certificate Holder. The Certificate contained the following language: "This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below." It thereafter named the holder as an additional insured on the policy.

Defendants moved for summary judgment dismissing the complaint and seeking declarations that S & S's insurance contract with Central did not obligate Central to defend or indemnify Calleo or the Congregation, and that the subcontract did not obligate S & S to procure additional insurance coverage for either. They further argued that the certificate of insurance naming Calleo as a certificate holder did not confer coverage on either Calleo or the Congregation.

Plaintiffs opposed the motion and cross moved for summary judgment declaring either that the Congregation and Calleo were additional insureds on Central's policy or were entitled to coverage pursuant an indemnification clause in the subcontract between Calleo and S & S. In support of their motion, plaintiffs submitted the affidavit of Gino Calleo, president of Calleo Development Corp., averring that it was always the intent of the subcontract between Calleo and S & S that the latter would obtain liability insurance naming both Calleo and the Congregation as additional insureds.

The IAS court granted defendants' motion for summary judgment declaring that the insurance contract between Central and S & S did not obligate Central to defend or indemnify Calleo in the underlying personal injury action, and the contract entered into between Calleo and S & S did not obligate S & S to procure additional insurance for Calleo. It found that Calleo was obligated to name Zarua as an additional insured on its policy, but there was an issue of fact as to whether the subcontract imposed the same obligation on S & S. However, the court found that the subcontract, including the attachment setting forth S & S's insurance obligation to the owner, contained no written agreement by S & S to name Calleo as an additional insured on its policy.

A contract should be "read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose" (Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 248 [1941], quoting what is now treated in 11 Lord, Williston on Contracts § 32:5 [4th ed]).

Here the court determined there was an issue of fact as to whether the subcontract imposed an obligation on S & S to obtain insurance for the Congregation, and then went on to find no issue of fact with respect to S & S's obligation to obtain insurance for the contractor. The subcontract, however, contained at least one page that was taken in toto from the contract between the Congregation and Calleo with respect to the purchase of insurance coverage. Moreover, a plain reading of the contract provisions between Calleo and S & S concerning insurance mirror, in some cases, those in the contract between Zarua and Calleo and thus raise an issue of fact as to the intent of the parties concerning which entities should be included as additional insureds. On a defendant's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the plaintiff (Ansonia Assoc. Ltd Partnership v Public Serv. Mut. Ins. Co., 257 AD2d 84, 98, [1999], lv denied, 96 NY2d 715 [2001]). Moreover, it is axiomatic that on a motion for summary judgment, issue-finding, rather than issue-determination, is the key to the procedure and the motion should not be granted where is any doubt as the existence of a genuine factual issue (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).

In this case, there is an issue of fact as to whether the contract between Calleo and S & S required S & S to name Calleo and the Congregation as additional insureds and hence, defendants' motion for summary judgment should have been denied in its entirety.

In the Matter of Pedro Aviles v. Allstate Insurance Company


Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award in favor of Allstate Insurance Company dated October 19, 2006, the appeal is from an order of the Supreme Court, Queens County (Hart, J.), dated June 1, 2007, which granted the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, the arbitration award is reinstated and confirmed, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate judgment (see CPLR 7511[e], 7514[a]).

The petitioner commenced this proceeding to vacate an arbitration award rendered in favor of Allstate Insurance Company (hereinafter Allstate) in an uninsured motorist arbitration. The petitioner alleged "partiality and misconduct" on the arbitrator's part. In support of his petition, the petitioner submitted only a copy of the arbitrator's award. The petitioner's counsel signed the petition. Allstate claimed, without challenge, that the lawyer who signed the petition was not present at the arbitration. Allstate opposed the petition with an affirmation of counsel who was present at the arbitration. She argued, in essence, that the arbitrator did nothing more than make credibility assessments, which was not a ground for vacating the award. No transcript of the arbitration appears in the record, and according to Allstate, no transcript was produced.

The Supreme Court granted the petition, presumably on the ground that the arbitrator was biased, as the court cited CPLR 7511(b)(ii), which we can only construe to mean CPLR 7511(b)(1)(ii). The court did not articulate a rationale in support of that result. Allstate appeals, and we reverse.

The petitioner failed to carry his burden of establishing bias on the part of the arbitrator (see Jain v New York City Tr. Auth., 27 AD3d 273, 273-274; Matter of Hegarty v Board of Educ. of City of N.Y., 5 AD3d 771, 773; Matter of New York State Correctional Officers & Police Benevolent Assn. [New York State Dept. of Correctional Servs.] 304 AD2d 954, 955; Matter of Infosafe Sys. [International Dev. Partners], 228 AD2d 272, 272-273). The award itself discloses no bias, and the conclusory claim of the petitioner's counsel to the contrary is unavailing. Accordingly, as the petition should have been denied, we reinstate and confirm the award, and remit the matter to the Supreme Court, Queens County, for the entry of an appropriate judgment (see CPLR 7511[e], 7514[a]).

The petitioner's remaining contentions are without merit.

In the Matter of Allstate Insurance Company v. Berger


Thomas Torto, New York, N.Y. (Jason Levine of counsel), for
respondent-appellant American Transit Ins. Co.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel),
for petitioner-respondent Allstate
Insurance Company.
Jose R. Mendez, P.C., Rego Park, N.Y., for respondent-
respondent Alfredo E. Berger.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, American Transit Ins. Co. appeals, and Full Moon Hacking Corp. and Mohammed Khan separately appeal, from a judgment of the Supreme Court, Queens County (Rios, J.), entered November 2, 2006, which, after a hearing, inter alia, granted the petition.

ORDERED that the appeals by Full Moon Hacking Corp. and Mohammed Khan are dismissed as abandoned (see 22 NYCRR 670.8[e]); and it is further,

ORDERED that the judgment is affirmed insofar as appealed from by American Transit Ins. Co.; and it is further,

ORDERED that one bill of costs is awarded to the petitioner, Allstate Insurance Company, payable by American Transit Ins. Co.

On August 29, 1999, Alfredo Berger, who was driving his car, was involved in an accident with a vehicle that was owned by Full Moon Hacking Corp. (hereinafter Full Moon), driven by Mohammed Khan, and insured by American Transit Ins. Co. (hereinafter American). The insurance policy required Full Moon to give American timely notice of a lawsuit stemming from an accident involving Full Moon's vehicle.

Sometime in 2001, Berger commenced an action (hereinafter the underlying action) against Full Moon and Khan, seeking to recover damages for injuries that he allegedly sustained as a result of the accident. Berger eventually obtained a default judgment against Full Moon and Khan, who both failed to appear in that action.

Berger sought to recover the amount of the default judgment from American (see Insurance Law § 3420[a][2]). On September 5, 2002, American advised Full Moon and Khan that it was disclaiming coverage because neither Full Moon and Khan, on the one hand, nor Berger on the other, ever notified American about the commencement of the underlying action.

Berger then submitted a claim for uninsured motorist benefits to the petitioner, Allstate Insurance Company, which insured his car at the time of the accident. When the petitioner denied that claim, Berger demanded that the claim be arbitrated. In response, the petitioner, alleging that American's disclaimer was invalid, commenced the instant proceeding against Berger and American, seeking to permanently stay the arbitration.

The matter proceeded to a hearing. At the conclusion of the hearing, the Supreme Court, noting that there was no evidence that either Full Moon or Khan was properly served with the summons and complaint in the underlying action, found that consequently they could not have breached their obligation to timely notify American of that action. Accordingly, the court, concluding that there was coverage under American's insurance policy, granted the petition, and permanently stayed the arbitration of Berger's claim for uninsured motorist benefits. We affirm.

The Supreme Court properly granted the petition. After the petitioner established, prima facie, that American insured Full Moon's vehicle, the burden shifted to American to establish the absence of coverage (see Matter of Liberty Mut. Ins. Co. v McDonald, 6 AD3d 614, 615). American failed to meet its burden. The record supports the Supreme Court's determination that American's disclaimer was invalid. Furthermore, contrary to American's contention, since Full Moon and Khan did not breach their obligation to provide American with timely notice of the commencement of the underlying action, Berger's failure to exercise his "independent right" (Lauritano v American Fid. Fire. Ins. Co., 3 AD2d 564, 567-568, affd 4 NY2d 1028) under Insurance Law § 3420(a)(3) to give American that notice does not require a different result (cf. Pitts v Aetna Cas. & Sur. Co., 218 F2d 58, 61, cert denied 348 US 973).
SANTUCCI, J.P., MILLER, LIFSON and COVELLO, JJ., concur.

NWE Corp. v. Atomic Risk Management of New York, Inc.


Edwards Angell Palmer & Dodge LLP, New York (Ira G.
Greenberg of counsel), for appellants.
Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola
(Adam I. Kleinberg of counsel), for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about April 13, 2007, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiffs failed to raise an inference either that they specifically requested greater coverage than that obtained by defendants or that their relationship with defendants imposed on the latter a duty to advise them to obtain additional coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152 [2006]).

Plaintiffs' remaining contentions are unavailing.

Columbia Energy Group v. Fisher and Crawford & Company


Biedermann, Hoenig & Ruff, New York (Peter H. Cooper of
counsel), for appellant.
Robertson, Freilich, Bruno & Cohen, L.L.C., Newark, NJ
(Michael S. Weinstein, of the New Jersey Bar, admitted pro hac
vice, of counsel), for respondents.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 12, 2007, which, to the extent appealed from, denied the motion of defendant Crawford & Company (Crawford) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant Crawford dismissing the complaint as against it.

Since plaintiff Columbia Energy Group was not in privity with Crawford, and Crawford's only obligation with regard to excess insurers was to notify the regional claims office of AIG if the loss potentially implicated excess coverage, it is evident that Crawford did not breach any obligation it might have had to Columbia. Once Crawford notified AIG, and there is no contention that it did not notify AIG, its obligations under the service agreement concerning excess coverage terminated.

Despite Columbia's suggestions to the contrary, nothing in the record suggests a course of dealings between Crawford and Columbia, whereby Crawford would notify the excess carrier in the absence of a request from Columbia. To the contrary, the record indicates that Columbia's risk manager requested Crawford, for the first time, in a letter dated three years after the loss, to notify the excess carrier, and, even then, believed that notice was premature. The letter concluded, "Based upon our knowledge of the facts in this case, we disagree with such necessity [of giving notice] here."

The causes of action for negligence and breach of fiduciary duty should also have been dismissed. The only obligations that Crawford had to Columbia flowed from the service agreement, and Columbia has provided no authority for its contention that Crawford also had a common law duty to Columbia concerning the excess claims (cf. Martini v Lafayette Studio Corp., 273 AD2d 112, 114 [2000]). Indeed, the correspondence between Columbia and Crawford belies Columbia's claim that it trusted Crawford to notify the excess insurer.

Berkowitz v. Taylor


Henry Stanziale, Mineola, N.Y., for appellant.
Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y.
(Jonathan A. Dachs of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Phelan, J.), entered January 23, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) from a judgment of the same court entered March 2, 2007, which, upon the order, is in favor of the defendant and against her dismissing the complaint. The notice of appeal from the order entered January 23, 2007, is deemed also to be a premature notice of appeal from the judgment (see CPLR 5501[c]).

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][l]).

The Supreme Court correctly determined that the submissions of the defendant established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact as to whether her present complaints were causally related to the accident of June 2001, which is the subject of this action, and not a subsequent accident in October 2001. The plaintiff's contention on appeal that her submissions in opposition to the defendant's motion raised a triable issue of fact as to whether she sustained a serious injury because she incurred a significant limitation of use of a body function or system is incorrect. "In order to establish that he [or she] suffered a significant limitation of use of a body function or system,' the plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration, based upon a recent examination of the plaintiff" (Laruffa v Yui Ming Lau, 32 AD3d 996, 996 [internal citation omitted]). The plaintiff's submissions failed to raise a triable issue of fact as to whether she sustained any such serious injury, since none of those submissions were based on a recent examination (see Amato v Fast Repair, Inc., 42 AD3d 477; Ali v Mirshah, 41 AD3d 748; Mejia v DeRose, 35 AD3d 407; Beckett v Conte, 176 AD2d 774; see generally Scheer v Koubek, 70 NY2d 678, 679). SPOLZINO, J.P., SKELOS, LIFSON and McCARTHY, JJ., concur.

Gonzales v. Fiallo


Douglas Herbert, Brooklyn, N.Y., for appellant.
Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson,
Peter James Johnson, Jr., James P. Tenney, Joanne Filiberti, and                                                    Vincent Torregiano of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated June 23, 2006, which granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant established her prima facie entitlement to judgment as a matter of law by establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Any restrictions in motion noted by the defendant's neurologist were adequately explained as self-imposed and unrelated to the accident, as part of the expert's qualitative assessment (see Toure v Avis Rent A Car Sys., 98 NY2d at 350).

On appeal, the plaintiff raises no argument that any of her submissions in opposition to the defendant's motion were sufficient to raise a triable issue of fact. We note, however, that the unaffirmed and uncertified reports and records relied upon by the plaintiff are without probative value (see Rodriguez v Cesar, 40 AD3d 731, 732-733; Phillips v Zilinsky, 39 AD3d 728, 729; Osgood v Martes, 39 AD3d 516; Borgella v D & L Taxi Corp., 38 AD3d 701, 702). The affirmation of the plaintiff's treating physician is likewise without probative value as the physician's conclusions rely upon the unsworn reports of others (see Phillips v Zilinsky, 39 AD3d at 729; Porto v Blum, 39 AD3d 614, 615; Marziotto v Striano, 38 AD3d 623, 624; Iusman v Konopka, 38 AD3d 608, 609).
The plaintiff's remaining contentions are without merit.
.

Jensen v. Nicmanda Trucking, Inc.


Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant.
Blane Magee, Rockville Centre, N.Y., for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated December 28, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

Contrary to the Supreme Court's determination, the defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351; Gaddy v Eyler, 79 NY 955, 956-957). The defendants' motion papers did not adequately address the plaintiff's claim, clearly set forth in his bill of particulars, 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 accident (see Alexandre v Dweck, 44 AD3d 597; Torres v Performance Auto. Group, Inc., 36 AD3d 894; Sayers v Hot, 23 AD3d 453, 454). The plaintiff stated in his bill of particulars that, as a result of the subject accident, he was out of work for approximately five months. The subject accident occurred on January 5, 2005, and the plaintiff was not examined by the defendant's examining orthopedic surgeon until June 19, 2006, approximately 1½; years after the accident. Despite these allegations of serious injury, the defendant's expert did not address this category of serious injury in his report (see Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d at 454).

Although the defendants' examining radiologist observed disc bulges in the lumbar and cervical spine of the plaintiff, based upon his review of the plaintiff's magnetic resonance imaging studies, he deemed that condition to be the result of pre-existing degenerative disc disease. His conclusion in this regard, however, was not sufficient to establish the defendants' prima facie case, since the plaintiff alleged more than just cervical and lumbar spine injuries in his bill of particulars, but also alleged bilateral shoulder derangement. While the defendants' examining orthopedic surgeon noted in his report that, on the date of his examination, the plaintiff had full range of motion in both shoulders, those findings were made 1½; years after the subject accident occurred. There was no opinion proffered by the defendants' experts on whether the plaintiff's alleged shoulder injuries prevented him from going to work for five months during the first 180 days immediately following the accident. Thus, the defendants failed to establish their prima facie case. When a defendant does not meet this initial burden, the court need not consider whether the plaintiff's opposition was sufficient to raise a triable issue of fact (see Alexandre v Dweck, 44 AD3d at 587; Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., FLORIO, CARNI and BALKIN, JJ., concur.

McKenzie v. Redl (Action No. 1)

 McKenzie v. 
Richmond (Action No. 2)


Keith S. Rinaldi, P.C., Poughkeepsie, N.Y. (Annette G. Hasapidis
and Andrew Bersin of counsel), for appellant.
McCabe & Mack LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee
of counsel), for respondents Susan G. Redl and Sharon M. Redl in Action No. 1.


Kris T. Jackstadt, Albany, N.Y. (Mark P. Donohue of counsel),
for respondents Ryan M. Richmond and Kelly M. Richmond in Action No. 2.

DECISION & ORDER

In two related actions to recover damages for personal injuries which were joined by stipulation for purposes of discovery and trial, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 18, 2006, which granted the defendants' respective motions for summary judgment dismissing the complaints on the ground that he 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' respective motions for summary judgment dismissing the complaints are denied.

The plaintiff commenced an action against the defendants Susan G. Redl and Sharon M. Redl to recover damages for injuries allegedly arising from a motor vehicle accident that occurred on December 19, 2001 (hereinafter the Redl Action). He commenced an action against the defendants Ryan M. Richmond and Kelly S. Richmond to recover damages for injuries allegedly arising from a motor vehicle accident that occurred on June 26, 2004 (hereinafter the Richmond Action). The actions were joined by stipulation for purposes of discovery and trial. The defendants in each action moved for summary judgment dismissing the respective complaints. Each argued that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accidents, but rather that all of his injuries were pre-existing because of prior accidents, and were not exacerbated by the subject accidents (see e.g. Lea v Cucuzza, 43 AD3d 882). The Supreme Court granted both motions. We reverse.

The Redl defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law. In support of their motion, the Redl defendants submitted, inter alia, affirmed medical reports from Dr. George Steiner, who examined the plaintiff after the accident at issue in the Redl Action (hereinafter the Redl accident). Ultimately, Steiner concluded that the injuries sustained in the Redl accident were limited to "acute cervical sprain" and "acute lumbrosacral sprain." However, although Dr. Steiner assigned various numeric values to range-of- motion tests he performed on the plaintiff, he failed to compare those numeric findings to what is deemed normal. Further, although the findings appear to indicate various decreases in the plaintiff's ranges of motion, Steiner established no basis upon which it might be concluded that such decreases were neither caused nor exacerbated by the Redl accident. Indeed, upon examination by Steiner, the range of motion of the plaintiff's lower back was "30 degrees forward flexion." In another medical report submitted by the Redl defendants, prepared by the plaintiff's long-time treating orthopedist, the same range of motion prior to the Redl accident was 60 degrees flexion. In sum, the Redl defendants failed to demonstrate prima facie entitlement to judgment as a matter of law with evidence that the injuries at issue were attributable to prior accidents or pre-existing conditions, and were not exacerbated by the Redl accident (see Cebularz v Diorio, 32 AD3d 975, 976).

In support of their motion, the Richmond defendants submitted, inter alia, an affirmed medical report from Dr. Robert Hendler. In the report, Hendler recounted the significant medical history and treatment of the plaintiff's back and neck (which included multiple surgeries) related to a work accident and two motor vehicle accidents (one of which is the accident at issue in the Redl Action) that occurred prior to the accident at issue in the Richmond action (hereinafter the Richmond accident). Ultimately, Hendler concluded that the injuries incurred in the Richmond accident were limited to "cervical and lumbrosacral sprain, with a temporary aggravation of a prior neck and lower back condition." Further, he concluded, such injuries "would not be the cause for any significant further treatment." However, upon his examination of the plaintiff after the Richmond accident, Hendler noted various decreases in the plaintiff's range of motion in his cervical spine and lumbar spine, without establishing any basis upon which it might be concluded that such decreases were neither caused nor exacerbated by the Richmond accident. Further, although Hendler characterized the decreases as "slight," he did not set forth any numeric range-of-motion values. Similarly, although he assigned numeric values to other physical tests performed on the plaintiff, he failed to compare those numeric values to what is deemed normal. Absent such a comparative quantification of his findings, it cannot be concluded that the range of motion in the plaintiff's cervical and lumbar spine was normal, or that any limitations were mild, minor, or slight as to be considered insignificant within the meaning of the no-fault statute (see McLaughlin v Rizzo, 38 AD3d 856; Spektor v Dichy, 34 AD3d 557; Cebularz v Diorio, 32 AD3d 975; Gentile v Snook, 20 AD3d 389). Therefore, the Richmond defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law with evidence that the injuries at issue were attributable to prior accidents or pre-existing conditions, and were not exacerbated by the Richmond accident (see Cebularz v Diorio, 32 AD3d 975, 796).

Consequently, summary judgment should have been denied to the defendants regardless of the sufficiency of the plaintiff's opposing papers.
RITTER, J.P., FLORIO, MILLER and DILLON, JJ., concur.

Ning Wang v. Harget Cab Corp.




Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Michael I. Josephs of counsel), for appellants.
Dansker & Aspromonte, New York, N.Y. (Vera Tsai of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Harget Cab Corp. and SS & R Management Company, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 13, 2007, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants Harget Cab Corp. and SS & R Management Company, Inc. (hereinafter the appellants), made out their prima facie case showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Contrary to the conclusion of the Supreme Court, the plaintiff's opposition papers were insufficient to raise a triable issue of fact.

The plaintiff's treating physiatrist's affirmations, while setting forth limitations as to the plaintiff's ranges of motion as to various parts of his body, were insufficient in that they failed to account for the 10-month gap between the physiatrist's last treatment of the plaintiff and the plaintiff's examination on January 9, 2007. There was no evidence that the plaintiff underwent any medical treatment in this time period and no explanation as to why none was appropriate (see Phillips v Zilinsky, 39 AD3d 728; Caracci v Miller, 34 AD3d 515; cf. Seecoomar v Ly, 43 AD3d 900; Black v Robinson, 305 AD2d 438; see also Pommells v Perez, 4 NY3d 566). Additionally, while there may have been some proof that the plaintiff was suffering from herniated or bulging discs, it was insufficient as there was no objective evidence as to the extent of any alleged physical limitations resulting from the disc injury and its duration (see Patterson v NY Alarm Response Corp.,AD3d [2d Dept, Nov. 13, 2007]; Mejia v DeRose, 35 AD3d 407; Kearse v New York City Tr. Auth., 16 AD3d 45).

The plaintiff's affidavit, recalling the events of the accident and the plaintiff's prior treatment, was insufficient to raise a triable issue of fact (see Fisher v Williams, 289 AD2d 288). The plaintiff's hospital records also were without any probative value in opposing the motion of the appellants since they were uncertified (see Patterson v NY Alarm Response Corp.,AD3d [2d Dept, Nov. 13, 2007]; Mejia v DeRose, 35 AD3d 407).

Finally, the plaintiff failed to proffer competent medical evidence that he sustained a medically-determined injury of a nonpermanent nature which prevented him, for 90 of the 180 days following the subject accident, from performing his usual and customary activities (see Sainte-Aime v Ho, 274 AD2d 569). RIVERA, J.P., FLORIO, CARNI and BALKIN, JJ., concur.

Olic v. Pappas


Sackstein, Sackstein & Lee, LLP, Garden City, N.Y. (Laurence D.
Rogers of counsel), for appellant.
Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Elan
Raday and Howard R. Cohen of counsel), for respondents Gus G. Pappas and
Nicholas T. Pappas, and Rubin, Fiorella & Friedman, LLP, New York, N.Y.
(Grant M. Meisels of counsel), for respondents Louis Klarevas, Dollar
Thrifty Automotive Group, Inc., and Dollar Rent A Car, Inc. (one brief  filed).


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated April 21, 2006, which granted the motion of the defendants Gus G. Pappas and Nicholas T. Pappas and the separate motion of the defendants Louis Klarevas, Dollar Thrifty Automotive Group, Inc., and Dollar Rent a Car, Inc., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motions for summary judgment dismissing the complaint are denied.

The evidence which the defendants submitted in support of their motions failed to eliminate all issues of fact as to whether the plaintiff sustained a fracture of the cervical region of the spine as a result of the subject motor vehicle accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp. 68 NY2d at 324; Wein v Amato Properties, LLC, 30 AD3d 506, 508).
MASTRO, J.P., DILLON, COVELLO and ANGIOLILLO, JJ., concur.

Rashid v. Estevez



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant.
Loscalzo & Loscalzo, P.C., New York, N.Y. (Michael S. Kafer of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated April 16, 2007, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion is granted.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's treating physician, along with his reports, failed to raise a triable issue of fact. The physician's initial conclusion that the plaintiff suffered from lumbar and cervical radiculopathy was contradicted by his own testing results which revealed that the plaintiff did not suffer from those injuries.

The affidavit of the plaintiff's treating chiropractor, along with his reports, were also insufficient to raise a triable issue of fact. The chiropractor concluded that the plaintiff's lumbar and cervical injuries and limitations were caused by the subject accident and were permanent. However, he failed to address the fact that the plaintiff had been injured previously in a football game, nor did he address the finding of the defendant's examining radiologist that the plaintiff suffered from pre-existing degenerative disc disease in the lumbar region of the spine. Thus, these omissions rendered speculative his conclusions that the injuries and limitations he noted in the plaintiff's cervical and lumbar regions of his spine were the result of the subject accident (see Phillips v Zilinsky, 39 AD3d 728; D'Alba v Yong-Ae Choi, 33 AD3d 650; Moore v Sarwar, 29 AD3d 752; Giraldo v Mandanici, 24 AD3d 419).

The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v DeRose, 39 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). Thus, the reports of the plaintiff's treating radiologist did not raise a triable issue of fact. The self-serving affidavit of the plaintiff also was insufficient to establish a triable issue of fact as to the existence of a serious injury (see Fisher v Williams, 289 AD2d 288).
RIVERA, J.P., FLORIO, CARNI and BALKIN, JJ., concur.

 

Bacchi v. Paris



Thomas A. Mason (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y.                   [Christopher Simone and Robert M. Ortiz] of counsel), for appellants.
Cullen & Dykman, LLP, Brooklyn, N.Y. (Timothy J. Flanagan of counsel), for respondents Christina Paris and Stacy A. Sanchez.
Baxter, Smith, Tassan & Shapiro, P.C., Hicksville, N.Y. (Robert C. Baxter, Sim R. Shapiro,            and Amy L. Schaefer of counsel), for respondents Joseph McKenna and Patricia McKenna.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Schulman, J.), dated June 23, 2006, which granted the separate motions of the defendants Joseph McKenna and Patricia McKenna and the defendants Christina Paris and Stacy Sanchez for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Ester Bacchi 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.

The defendants established a prima facie case that the plaintiff Ester Bacchi (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident on August 16, 2002, through the submission of magnetic resonance imaging reports of the plaintiff's cervical and lumbar spines and left and right knees taken by the plaintiff's own treating physicians (see Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition to the motions for summary judgment, the plaintiff failed to present admissible evidence sufficient to raise a triable issue of fact as to whether her injuries were causally related to the accident on August 16, 2002, rather than to an accident which occurred years earlier (see McNeil v Dixon, 9 AD3d 481, 482).
 

Giammanco v. Valerio


Tierney & Tierney, Port Jefferson Station, N.Y. (Stephen A. Ruland of counsel), for appellant.
McCabe, Collins, McGeough & Fowler, Carle Place, N.Y. (Patrick M. Murphy of counsel),            for respondent Michael P. Valerio, Jr.
Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for respondent
Frederick B. Santora.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 5, 2006, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs, and the motions for summary judgment dismissing the complaint insofar as asserted against the defendants are denied.

Contrary to the Supreme Court's determination, the defendants failed to establish, on their separate motions for summary judgment, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 355; McNulty v Buglino, 40 AD3d 591; McLaughlin v Rizzo, 38 AD3d 856). In support of their separate motions for summary judgment, the defendants relied on essentially the same submissions, including the affirmed medical reports of the examining orthopedist and neurologist of the defendant Michael Valerio, Jr. In the affirmed medical report of the examining orthopedist, he set forth lumbar spine range of motion findings, but failed to compare those findings to what is normal (see Malave v Basikov, 45 AD3d 539; Nociforo v Penna, 42 AD3d 514, 515; McNulty v Buglino, 40 AD3d at 592; Osgood v Martes, 39 AD3d 516; McLaughlin v Rizzo, 38 AD3d at 858), and in the process noted a significant limitation in the plaintiff's lumbar rotation (see Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472, 473). In the report of the examining neurologist, he concluded that the plaintiff had "full" range of motion in, inter alia, the cervical and lumbar regions of her spine, yet failed to set forth the objective test or tests he performed to arrive at those conclusions (see Palladino v Antonelli, 40 AD3d 944, 945; McCrary v Street, 34 AD3d 768, 769; Nembhard v Delatorre, 16 AD3d 390, 391).

Since the defendants failed to establish their respective prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Palladino v Antonelli, 40 AD3d at 945; McNulty v Buglino, 40 AD3d at 592; Coscia v 938 Trading Corp., 283 AD2d 538). MASTRO, J.P., SANTUCCI, DILLON and ANGIOLILLO, JJ., concur.

Jacobs v. Slaght



Flanzig and Flanzig, LLP, Mineola, N.Y. (Cathy Flanzig of counsel), for appellant.
Sobel & Kelly, P.C., Huntington, N.Y. (Kimberly R. McCrosson of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated December 29, 2006, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The plaintiff was operating her vehicle when she was involved in an accident with another vehicle operated by the defendant. The plaintiff alleged that she sustained various injuries as a result of the accident, and commenced the instant action against the defendant. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.

The defendant met his prima facie burden by showing 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, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff contends that she sustained a significant limitation of use of her left wrist as a result of the accident, yet she failed to provide any medical report or record which included an examination showing the degree or extent of any physical limitation in the use of her left wrist (see Ali v Mirshah, 41 AD3d 748, 749; Mejia v DeRose, 35 AD3d 407). The mere existence of carpal tunnel syndrome is not evidence of a serious injury in the absence of objective testing of the extent and duration of the alleged physical limitations resulting from the injury (see Patterson v. N.Y. Alarm Response Corp.,AD3d [2d Dept, Nov. 13, 2007]; Tobias v Chupenko, 41 AD3d 583, 584; Yakubov v CG Trans Corp., 30 AD3d 509, 510; Kearse v New York City. Tr. Auth., 16 AD3d 45, 49). The plaintiff's medical submissions failed to establish objective evidence of the extent and duration of the alleged physical limitations resulting from any injuries to her left wrist. The report of Dr. Itzhak Haimovic, one of the plaintiff's treating neurologists, was without any probative value since it was unaffirmed (see Patterson v N.Y. Alarm Response Corp.,AD3d[2d Dept, Nov. 13, 2007]; Rodriguez v Cesar, 40 AD3d 731, 732-733).
CRANE, J.P., FISHER, RITTER, COVELLO and DICKERSON, JJ., concur.

Jean v. Lima



Alan B. Brill, P.C. (Rivkin Radler LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman, Harris J. Zakarin, and Melissa M. Murphy] of counsel), for appellant.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Rockland County (Liebowitz, J.), entered March 12, 2007, which denied her motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant made a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs raised a triable issue of fact.
SPOLZINO, J.P., SKELOS, LIFSON and McCARTHY, JJ., concur.

Johnson v. Charles



Gary N. Rawlins, Brooklyn, N.Y. (Mitchell L. Perry of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Michael I. Josephs of counsel), for respondent Pierre Charles.
James G. Bilello, Westbury, N.Y. (John DiFalco of counsel), for respondent Henry Vargas.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated September 11, 2006, which denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to renew her opposition to the separate motions of the defendants Pierre Charles and Henry Vargas for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which had been granted in an order of the same court dated June 19, 2006.

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

Initially, the plaintiff's motion, denominated as one for leave to renew and reargue, was in actuality one for renewal only (see O'Brien v Richmond Mem. Hosp. & Health Ctr., 263 AD2d 532; Cippitelli v Hower, 54 AD2d 954). The plaintiff failed to offer reasonable justification as to why the evidence proffered in support of her motion was not submitted at the time of the defendants' prior motions for summary judgment. Thus, the court providently exercised its discretion in denying the plaintiff's motion (see Worrell v Parkway Estates, LLC, 43 AD3d 436; O'Dell v Caswell, 12 AD3d 492).
RIVERA, J.P., FLORIO, CARNI and BALKIN, JJ., concur.

Shvartsman v. Vildman



Corigliano, Geiger, Verrill & Brandwein, Jericho, N.Y. (Kathleen M. Geiger of counsel),                  for appellants.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Schack, J.), dated January 12, 2007, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants, Vyacheslav Vildman and Mikhail Vildman, made a prima facie showing of their entitlement to judgment as a matter of law by establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.

The only medical submissions that were properly before the Supreme Court were the affirmed medical report of Dr. Zina Turovsky and the affirmation (with annexed reports) of Dr. Robert D. Solomon. All of the other medical submissions relied upon by the plaintiff were without any probative value since they were unsworn (see Rodriguez v Cesar, 40 AD3d 731, 732-733). The affirmed medical report of Dr. Turovsky, the plaintiff's examining physician, failed to raise a triable issue of fact. Dr. Turovsky concluded that the plaintiff sustained permanent injuries and limitations to his cervical spine and left knee as a result of the subject accident. While there was evidence in that report of range-of-motion limitations in the plaintiff's cervical spine that was based upon a recent examination, neither the plaintiff nor Dr. Turovsky proffered any competent medical evidence that showed range-of-motion limitations in the plaintiff's cervical spine or left knee that were contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525; Rodriguez v Cesar, 40 AD3d 731, 733; Borgella v D & L Taxi Corp., 38 AD3d 701, 702). The submission of the plaintiff's magnetic resonance imaging reports concerning his cervical spine and left knee, as authored by Dr. Solomon, merely showed that, as of February 2003, the plaintiff had herniated discs in his cervical spine and a partial tear of the medial meniscus of the left knee. The mere existence of a herniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Patterson v N.Y. Alarm Response Corp., ______AD3d______ [2d Dept, Nov. 13, 2007]; Tobias v Chupenko, 41 AD3d 583, 584; Mejia v DeRose, 35 AD3d 407, 407-408).

The plaintiff's self-serving affidavit was insufficient to show that he sustained a serious injury, since there was no objective medical evidence in support of it (see Tobias v Chupenko, 41 AD3d at 584). None of the admissible medical submissions by the plaintiff were sufficient to establish that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569, 570).
CRANE, J.P., FISHER, RITTER, COVELLO and DICKERSON, JJ., concur.

In re Continental Casualty Company v. Lecei


London Fischer LLP, New York (Stephenie Lannigan Bross of
counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac
of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered August 23, 2006, denying petitioner's application to stay arbitration under the supplemental underinsured motorist provision of a policy issued to respondent's employer, and dismissing the petition, unanimously reversed, on the law, without costs, the petition reinstated and the matter remanded for a hearing on the issue of whether respondent was "occupying" the truck at the time of the accident.

Indisputably, respondent is not a named insured under the policy issued by petitioner to Welsbach Electric Corp., respondent's employer. Accordingly, for purposes of supplementary uninsured/underinsured motorist (SUM) coverage, respondent is an insured who is entitled to coverage, and to demand arbitration of disputes with the insurer involving the amount of payment that may be owing under such coverage, only if he was "occupying" the Welsbach truck within the meaning of the policy. The parties offer radically different accounts of the facts relating to respondent's actions at the time of the accident. Suffice it to say, under respondent's version of the facts he was "occupying" the truck (and thus is an insured who is entitled, inter alia, to demand arbitration), but under petitioner's version of the facts he was not "occupying" the truck (and thus has no rights under the policy, let alone the right to demand arbitration).

In Matter of Aetna Cas. & Sur. Co. v Cartigiano (178 AD2d 472 [1991]), Cartigiano demanded arbitration of her claim for underinsured motorist benefits under a policy issued by Aetna to her son-in-law. Aetna brought a proceeding to stay the arbitration pursuant to CPLR 7503 on the ground that Cartigiano's deposition had established she was not a "family member" within the meaning of the policy because she did not reside in her son-in-law's household and thus was not an insured. Aetna's petition was dismissed as untimely and the Second Department reversed, reasoning as follows:

"We find that the court erred in dismissing the petition without a hearing. Whether Cartigiano is an insured under her son-in-law's policy presents a factual issue that must be determined by an evidentiary hearing as a condition precedent to arbitration (see Matter of Fireman's Fund Ins. Co. v Freda, 156 AD2d 364). Although Aetna failed to commence this proceeding within the statutory time period (see CPLR 7503[c]), a stay application filed after the statutory time period may be entertained where it is based on the contention that the parties did not agree to arbitrate a claim for which no coverage was provided under the policy (see Matter of Matarasso [Continental Gas. Co.], 56 NY2d 264; United States Fid. & Guar. v Housey, 162 AD2d 523). Aetna contends that since Cartigiano is not a "family member", the parties did not agree to arbitrate her claim. Coverage of an additional insured cannot be attained by waiver (see Schiff Assoc. v Flack, 51 NY2d 692) and Aetna did not forfeit its right to raise this issue by its selection of an arbitrator" (178 AD2d at 473).
Accordingly, the Second Department remanded for a hearing on the issue of whether Cartigiano was a "family member" (id.).

Cartigiano is persuasive and we therefore remand for a hearing on the issue of whether respondent was "occupying" the truck at the time of the accident. As petitioner argues, if it can be compelled to arbitrate SUM coverage even if respondent was not "occupying" the truck at the time of the accident, it can be compelled to arbitrate SUM coverage even if its investigation had shown that respondent was injured after falling inside his home.

Supreme Court's and respondent's reliance on Matter of Steck (State Farm Ins. Co.) (89 NY2d 1082 [1996]) is misplaced. That case supports petitioner's argument, and the holding in Cartigiano, precisely because petitioner's argument "relates to whether . . . the parties have agreed to arbitrate" (89 NY2d at 1084).

Mark Simon, d/b/a On The Mark, Jewelry, Coins & Collectibles v. State National Insurance Company


Mary Beth Mullins, Larchmont, N.Y., for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y.
(Mark J. Volpi and Gail L. Ritzert of
counsel), for respondents.

DECISION & ORDER

In an action to recover benefits under an insurance policy, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered September 29, 2006, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the plaintiff's cause of action to recover the value of items he received on consignment from Anthony Jewelers and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The defendants established their prima facie entitlement to judgment as a matter of law by showing that the plaintiff failed to comply with paragraph 9 of the insurance policy captioned "RECORDS AND INVENTORY." In opposition, the plaintiff raised a triable issue of fact as to whether he kept proper records as to those items he received on consignment from Anthony Jewelers, as required by the policy. Accordingly, the Supreme Court erred in granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover the value of those items (see Anjay Corp. v Those Certain Underwriters at Lloyds of London, 33 AD3d 323; Mord v New York Indem. Co., 216 App Div 252, affd 244 NY 589; cf. Coin Roberto v Reliance Ins. Co., 281 AD2d 319; Globe Jewelry v Pennsylvania Ins. Co., 72 Misc 2d 563; see also Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 89 AD2d 131, affd 60 NY2d 390; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The defendants' remaining contention is without merit.
RIVERA, J.P., SPOLZINO, CARNI and McCARTHY, JJ., concur.

R. Ferraro Collision, Inc.  v Universal Underwriters Insurance Company,

a/k/a Universal Underwriters Group


Zawacki, Everett & Gray, New York, N.Y. (John E. Gray and
Dhruv A. Dhavan of counsel), for appellant.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C.,
New York, N.Y. (Gary Adelman of
counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to indemnify the plaintiff in the sum of $134,917 pursuant to a policy of insurance for the loss of personal property, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated September 29, 2006, which denied its motion for summary judgment declaring that it is not so obligated.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to indemnify the plaintiff in the sum of $134,917.

The plaintiff, an automobile body repair shop, commenced this action against the defendant insurance company, inter alia, for a judgment declaring that the defendant is obligated to indemnify it under the terms of its insurance policy in the sum of $134,917, the value of a Mercedes- Benz automobile belonging to one of its customers that was stolen from its garage. In its complaint, the plaintiff alleged that the customer owed it funds in excess of this amount, and "in payment for the loss of the" vehicle, the customer "kept" funds totaling this amount. The plaintiff alleged that the defendant was obligated to indemnify it for the amount "kept" by the customer.

The defendant moved for summary judgment, contending, inter alia, that the plaintiff was not entitled to any indemnification because it failed to comply with the provision concerning its "duties after loss," as set forth in the insurance policy. In particular, the defendant alleged that the plaintiff made a payment to the customer without the defendant's consent.

The insurance policy provides that the defendant "will not defend or pay any LOSS for YOU or any other INSURED who fails to comply with their duties after loss." One of the "duties after loss" imposed upon the plaintiff is to "assume no obligation, make no offer of payment, and incur no expenses without OUR consent, except at the INSURED'S own cost."

The defendant made a prima facie showing of its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) by submitting the deposition transcript of the plaintiff's president, in which he testified that he satisfied the alleged $134,917 debt that the customer claimed the plaintiff owed it. The plaintiff's president further testified that he "paid" the customer because he did not want the business relationship with the customer to end. The plaintiff presented no evidence to refute the defendant's prima facie showing, and failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to indemnify the plaintiff in the sum of $134,917 (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).
MASTRO, J.P., SANTUCCI, BALKIN and DICKERSON, JJ., concur.

Net v. Poloso

 

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered December 19, 2006, which conditionally granted its motion to dismiss the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered December 19, 2006, reversed to the extent appealed from, and defendant's motion to dismiss granted unconditionally, with $10 costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint as against him.

Plaintiffs' wilful and contumacious conduct in delaying and obstructing the disclosure process may be inferred from the failure of plaintiff Cordero to appear for no less than 16 scheduled medical examinations over two years and plaintiffs' disregard of numerous court orders, including two orders directing preclusion for noncompliance (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Rollieson v Hollywood Entertainment Corp., 38 AD3d 238 [2007]). Plaintiffs' counsel's claim that his clients could not be located is not a justifiable excuse for noncompliance with a conditional order of preclusion (see Reidel v Ryder TRS, Inc., 13 AD3d 170 [2004]; Perez v New York City Hous. Auth., 229 AD2d 310 [1996]). Plaintiffs' repeated noncompliance has resulted in substantial and unnecessary delay and expense, which, contrary to the suggestion of plaintiffs' counsel, should not be viewed merely as "the cost" of defendant "doing business," but instead reflects plaintiffs' blatant disregard of statutory disclosure requirements. Under the circumstances, defendant's motion to dismiss should have been granted unconditionally (see CPLR 3216).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

 

Liberty Mutual Fire Insurance Co. v. National Casualty Co.



Cascone & Kluepfel, LLP, Garden City, N.Y. (Leonard M. Cascone
of counsel), for appellant.
Jaffe & Asher LLP, New York, N.Y. (Marshall T. Potashner of
counsel), for respondents.


DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is required to defend and indemnify the plaintiffs ADESA New York, LLC, and Louis Amelia with respect to various personal injury actions and claims which arose out of an accident that occurred on July 22, 2005, the defendant appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 2, 2007, which granted the plaintiffs' motion for partial summary judgment on the first cause of action and denied its cross motion for summary judgment.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate declaratory judgment.

We agree with the defendant that the disputed policy provision is in the nature of a limitation of coverage (see Matter of Atlantic Mut. Ins. Cos. v Ceserano, 5 AD3d 382, 383-384; State Farm Mut. Auto. Ins. Co. v John Deere Ins. Co., 288 AD2d 294; Matter of Fireman's Fund Ins. Co. v Freda, 156 AD2d 364, 366; Schmidt v Prudential Ins. Co., 143 AD2d 997, 998-999), rather than an exclusion (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-190; United Servs. Auto. Assn. v Meier, 89 AD2d 998, 1000). Consequently, the defendant's failure to issue a timely denial of coverage did not estop it from denying coverage on that ground (see Insurance Law § 3420[d]; Zappone v Home Ins. Co., 55 NY2d 131, 138; National Union Fire Ins. Co. of Pittsburgh, Pa. v Utica First Ins. Co., 6 AD3d 681, 682). 

The disputed provision, however, was ambiguous as to whether auctioneers were covered by the policy. The law is clear that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer (see Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44, 49). Further, where the policy is ambiguous regarding the "extent of coverage," the insurer must issue a timely disclaimer under Insurance Law § 3420(d) (Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 370-371; see New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d 898, 899). Here, the defendant did not issue a timely denial of coverage, and the ambiguity in coverage is construed against it, thus affording coverage under its policy to the plaintiffs ADESA New York, LLC, an auctioneer, and Louis Amelia, one of its employees, (cf. Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d at 371). Additionally, as the Supreme Court properly determined, under the terms of the two policies at issue, the defendant's policy provided primary coverage and the policy of the plaintiff Liberty Mutual Fire Insurance Company provided excess coverage. Consequently, the Supreme Court properly granted the plaintiffs' motion for partial summary judgment on the first cause of action and denied the defendant's cross motion for summary judgment.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for entry of an appropriate declaratory judgment (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

In the Matter of Progressive Northeastern Insurance Company v. Gigi


Composto & Composto, Brooklyn, N.Y. (Frank A. Composto of
counsel), for appellant.
Nesci, Keane, Piekarski, Keogh & Corrigan, White Plains, N.Y.
(Jason M. Bernheimer of counsel), for
respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, the appeal is from an order of the Supreme Court, Orange County (McGuirk, J.), dated December 6, 2006, which denied the motion of Stefania Gigi to vacate an arbitration award dated June 1, 2006, and confirmed the award.

ORDERED that the order is affirmed, with costs.

The appellant failed to demonstrate, by clear and convincing evidence, that the arbitrator committed misconduct within the meaning of CPLR 7511(b)(1)(i) (see Matter of Henneberry v ING Capital Advisors, LLC, 37 AD3d 353, 354; Matter of Kaufman v Allstate Ins. Co., 9 AD3d 431; Matter of GEICO Gen. Ins. Co. v Sherman, 307 AD2d 967, 969; Matter of Cox [Mitchell], 188 AD2d 915, 917). Under the circumstances presented, the arbitrator's offer to grant the appellant's request for an adjournment conditioned upon the appellant's counsel's payment of the appearance fee of his adversary's expert, was reasonable (cf. 22 NYCRR 130-2.1[a]). Accordingly, the Supreme Court correctly denied the appellant's motion to vacate the arbitration award, and correctly confirmed it (see CPLR 7511[e]).

The appellant's remaining contentions are without merit.

Tower Insurance Company of New York v. Dyker Contractors, Inc.


Composto & Composto, Brooklyn (Eric C. Bryant of counsel),
for appellant.
Max W. Gershweir, New York, for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered September 13, 2006, which, to the extent appealed from, granted plaintiff's motion for summary judgment declaring that it had no duty to defend or indemnify defendant Dyker Contractors, Inc. in an underlying personal injury action, unanimously affirmed, without costs.

Dyker failed to raise a triable issue of fact whether its belief in its nonliability was reasonable, so as to excuse its nine-month delay in notifying plaintiff of the occurrence (see White v City of New York, 81 NY2d 955, 957 [1993]). The injury resulted from the collapse of a stairway at the job site at which Dyker was general contractor, Dyker's foreman notified its principal of the accident on the day it happened, and the injured party appeared on site soon thereafter with his leg in a cast (see e.g. Pendill v Furry Paws, Inc., 29 AD3d 453 [2006]).

 

Employers' Fire Insurance Company v.  Brookner


Hitchcock & Cummings, LLP, New York, N.Y. (Christopher B.
Hitchcock and Carolyn Comparato of counsel), for appellant.
Cozen O'Connor, New York, N.Y. (John B. Galligan and Robert
W. Phelan of counsel), for respondent.

DECISION & ORDER

In a subrogation action, inter alia, to recover amounts paid by the plaintiff to its insureds for property damage, the defendant Andrew Brookner appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 5, 2007, as denied that branch of his motion which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(1) and (5).

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

The medical office of the defendant Andrew Brookner was located on the third floor of a building owned by the plaintiff's subrogor RAIA Realty Corp. (hereinafter RAIA). The other medical offices in the building sustained heavy water damage when a water hose on Brookner's surgical laser machine burst. The plaintiff insurance carrier paid the claims of its insureds, RAIA, A.E.M. Optical, Inc., d/b/a Kings Highway Vision Center (the tenant of the first floor of the building; hereinafter AEM), and the principals of those two corporations, arising from the water damage.

Alexandra Etkin, the occupant of the second floor of the building, together with her husband, Edward Etkin, commenced an action (hereinafter the Etkin Action) against Brookner, RAIA, and RAIA's principal, Akiva Mitzmacher, alleging property damage and personal injuries resulting from the water leak. The latter two defendants asserted a cross claim against Brookner, seeking indemnification or contribution. The parties subsequently reached a settlement agreement, under which Brookner was to pay the Etkins the sum of $30,000. Neither RAIA nor Mitzmacher was required to make any payment to the Etkins, and neither RAIA nor Mitzmacher recovered any money from Brookner. The parties to the Etkin Action entered into a stipulation discontinuing the action, which specified that the discontinuance was "with prejudice."

The plaintiff subsequently commenced this subrogation action against Brookner and others, seeking to recover the amounts it had paid to its insureds as a result of the water damage allegedly caused by, inter alia, Brookner's negligence. Brookner moved to dismiss the complaint and all cross claims insofar as asserted against him, arguing that the instant action was barred by res judicata, based on the stipulation of discontinuance in the Etkin Action, which arose from the same occurrence. In the order appealed from, the Supreme Court denied Brookner's motion. We affirm the order insofar as appealed from.

A plaintiff suing as a subrogee " is subject to whatever rules of estoppel would apply to the insured'" (State Farm Mut. Auto. Ins. Co. v Polge, 258 AD2d 911, 911, quoting D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665). Thus, if RAIA and Mitzmacher would be barred by the doctrine of res judicata from commencing an action against Brookner to recover for the property damage caused by his alleged negligence, then the plaintiff's subrogation action—at least to the extent that it seeks to recover amounts paid to RAIA and Mitzmacher—would likewise be barred.

A final judgment "bars future actions between the same parties on the same cause of action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). This doctrine of res judicata only bars "additional actions between the same parties on the same claims based upon the same harm" (Matter of LaRocco v Goord, 43 AD3d 500, 500, quoted in City of New York v Welsbach Elec. Corp., 9 NY3d 124; see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 347-348). Under the circumstances presented here, the cross claim for indemnification or contribution asserted by RAIA and Mitzmacher in the Etkin Action was not the "same claim" as the cause of action for property damage asserted in the plaintiff's subrogation action. Nor was the cross claim asserted in the Etkin Action based upon the "same harm" as the cause of action asserted in the subrogation action; the cross claim was based on the harm suffered by the Etkins, while the plaintiff's cause of action was based on the harm suffered by its insureds. Thus, although the Etkin Action and the instant action have some factual issues in common, and it would have been technically permissible for RAIA and Mitzmacher to assert, through cross claims, causes of action to recover for their own property damage in the action commenced by the Etkins (see CPLR 601[b]), they were not precluded from litigating their property damage claims in a separate action (see City of New York v Welsbach Elec. Corp., 9 NY3d 124; Xiao Yang Chen v Fischer, 6 NY3d 94, 102).

Moreover, when the final determination relied upon for res judicata effect is a stipulation of discontinuance, "the language with prejudice' is narrowly interpreted when the interests of justice, or the particular equities involved, warrant such an approach" (Dolitsky's Dry Cleaners v YL Jericho Dry Cleaners, 203 AD2d 322, 323). Here, the settlement of the Etkin Action did not involve, and the stipulation of discontinuance did not mention, the cross claim for indemnification or contribution asserted by RAIA and Mitzmacher (cf. Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292). The most natural understanding of the phrase "with prejudice" in this case is that relitigation of the Etkins' claims would be precluded. The parties could not have reasonably intended or believed that, by settling the Etkin Action for the sum of $30,000, Brookner would forever extinguish not only his liability to the Etkins, but his liability to the occupant of the first floor (AEM), the owner of the building (RAIA), and the principals of those corporations, for the separate damages they sustained as a result of his alleged negligence.

Thus, since an action by RAIA and Mitzmacher against Brookner to recover for their property damage would not be barred by res judicata, the plaintiff's subrogation action asserting the same claims is likewise not barred. Accordingly, the Supreme Court properly denied that branch of Brookner's motion which was to dismiss the complaint insofar as asserted against him.

The parties' remaining contentions are without merit or need not be reached in light of our determination.
PRUDENTI, P.J., MASTRO, SANTUCCI and LIFSON, JJ., concur.

 

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