Coverage Pointers - Volume IX, No. 18

Dear Coverage Pointers Subscribers:

 

We were thinking of sending out this week's edition next week, since it is, after all, National Procrastination Week.  But we would have put it off again.

 

Welcome to the Nones of March edition of Coverage Pointers. More later.

 

Legislative Watch

Still no new language has come down from the Governor's office on the "Late Notice" bill.  We will advise upon receipt.

 

Food Watch

 

In case you're hungry, the following food holidays are presently being celebrated.  Hallmark must have cards somewhere:

National White Chocolate Cheesecake Day      March 6
National Crown Roast of Pork Day                  March 7
National Peanut Cluster Day                             March 8.

 

Educational Opportunity for Claims Professionals:
 

FDCC Litigation Management College and Graduate Program
June 15-19, 2008
Emory University, Atlanta, GA
 

The FDCC Litigation Management College and Graduate Program will be held at Emory University from June 15-19, 2008.  The College and the Graduate Program sell out each year, so register early. Electronic registration is now open, visit the FDCC website, www.thefederation.org. To book your room accommodations, call the hotel directly at 800-933-6679.

 

Bi-Economy Watch

All the buzz remains focused on the Bi-Economy decision reported last week and we will be focusing our attention on developments in the field of "consequential damages."  While we normally report only on appellate decisions in this publication, for the next few months, at least, we will report on every reported decision we find, even at the trial court level, where Bi-Economy is discussed.  Stay tuned.  I ask you for help on this because lower court decisions are not often published in the court reporters or on-line.  If you come across any decisions, please scan them and send them along so we can share developments with the industry. By the way, if you want to see the briefs filed at the Court of Appeals in this case, I have them handy. 

 

In this issue, we review Kantrowitz v. Allstate Insurance Company, an Appellate Division decision decided a few days after Bi-Economy.  The Second Department did not discuss Bi-Economy, when it dismissed the extra-contractual claims under a more traditional analysis.

 

Insurance Coverage Arbitration & Mediation
Resolving the Complex without the Substantial Costs of Litigation 

There are times, more often recently than not, when insurers wish to resolve complex insurance coverage disputes without the expense and costs of trial and without the risk of potentially adverse judicial precedent.  We have encouraged the mediation and/or arbitration of complex insurance coverage claims and our office can assist insurers and insureds in bringing reasoned resolution to coverage disputes.

 

Hurwitz & Fine, P.C. now offers both mediation and arbitration services through attorney Dan D. Kohane.  Why spend the money and the time to litigate these questions when resolution by mediation or arbitration can bring closure to hotly contested matters in relatively short order for substantially reduced costs.

 

Dan D. Kohane has been handling complex insurance coverage matters for over 25 years.  For 20 years, he has served as an Adjunct Professor of Insurance Law at the Buffalo Law School and is frequently retained as an expert witness in insurance coverage matters throughout the United States, Canada and in the London market.  He is well-schooled as an arbitrator and mediator and lectures regionally, nationally and internationally on insurance coverage issues. Mr. Kohane serves as Immediate President of the Federation of Defense & Corporate Counsel, and Board Chair.  The FDCC is an international organization of over 1300 merit-selected lawyers and regional and national insurance claims professionals and he is the past chair of the FDCC's Insurance Coverage Section.

 

Mr. Kohane is also an experienced trial lawyer, handling insurance coverage and extra-contractual matters of behalf of insurers and policyholders. He brings years of experience, scholarship, practicality and common sense to the table.

 

For information, contact Dan Kohane at [email protected] or 716.849.8942.

 

Beware the Ides ..

 

Had Julius Caesar's death been planned eight days earlier, Billy Shakespeare would have warned us to "Beware the Nones of March."  It just doesn't sound as ominous.  The Ides of March are just around the corner. 

 

In the Reduced Shakespeare Company's version of Julius Caesar, Adam Long (playing the seer) tells Reed Martin (playing Caesar) to beware the Ides of March, to which Caesar asks, confused, "What the hell are the Ides of March?"

 

Surely a fair question.

 

The term Ides comes from the earliest Roman calendar, said to have been developed by Romulus, who was kind enough to mythically found the City of Rome.  The Roman calendar organized its months around three days, each of which served a way to count to the other days. 

 

The first of the month was known as Kalends which led to the naming of the calendar of course, a means of chopping up the year into bite size pieces.  It was also the name of an episode of the dearly departed series, ROME, the Kalends of February, which was the last show of the first season, in which Julius met his death.  Who can forget the immortal words of Servilia of the Junii in that episode: "So you see the tyrant is dead, the republic is restored and you are alone? Would you like some honey water?"

 

The Nones were the 7th day in March, May, July, and October; the 5th in the other months and the Ides were the 15th day in March, May, July, and October; the 13th in the other months.  So March 5^th, for example (which as so many of you know is also known in many circles as the National Kohane Birthday Holiday) would have been known in Rome as III Nones March - in Roman times, one would count the 5^th as one of the days.

 

We do note that the late baseball great Bobby Bonds, father of baseball slugger Barry "What's a Steroid" Bonds, was born on the Ides of March. As far as ball players born on the National Kohane Birthday Holiday, March 5^th, there is only one admitted into the Hall of Fame, Big Sam Thompson.  He is best known as one of the trio of outfielders on the 1894 Philadelphia Phillies who all hit .400.  After baseball Thompson worked as a "crier" in Federal Court and died when he had a heart attack while working as an election inspector on VIII Ides November, 1922.

 

As fate would have it, the name Autry came up again in our research.  For those who enjoyed the story of our one-game wonder, Al Autry (born on February 29^th ) reviewed in the last issue, it is quite amazing, indeed, that another Autry (no, not Gene) but Marty "Chic" Autry, was also born on March 5^th (1903).  He has the distinction of being one of the three 21-year old players who played for the Yankees in 1924.  The others?  Pitcher Big Ben Shields and another fellow, a guy named Lou Gehrig, who was in his second season with the pinstripers.

 

Audrey's Angles

 

From Audrey, the Royal Purveyor of No Fault, we provide her unedited comments:

 

First things first - Happy Birthday Dan! (It was Wednesday)  Before you ask the question, being a woman, I am not divulging my age OR Dan's.

 

The topic this edition is proper peer reviews and IMEs.  We have some interesting arbitration awards that are well reasoned by the same arbitrator.  It is worth reading the full decisions as the arbitrator runs through two cases (Nir and West Tremont) regarding each parties' burden in demonstrating medical necessity and lack thereof based upon a peer review.  It cannot be stressed enough that insurers need to obtain appropriate peer reviews and IMEs.  However, as these decisions demonstrate the burden is also on the applicant to demonstrate objective medical evidence of medical necessity and refute the peer review or IME.  What it means to obtain a good peer review or IME is something that we have provided training programs on and would be happy to come to you to discuss.  Please let us know if you have an interest in any training on the topic and I would be more than happy to discuss it with you.

 

Audrey Seeley
[email protected]

 

Editor's Note:  Dan is not afraid to reveal his age.  He is a couple-three years older than Audrey.

 

Mark's Mark

Here's the word from over-burdened Serious Injury scholar, Mark Starosielec.  Hey, you need someone to handle a "serious injury" threshold case for you?  Mark's the man.  Few other lawyers in the free world have read and summarized every blessed serious injury case for the past years.

 

            Beware of the "Fruit of the Poisonous Tree" 

This phrase is applicable even outside the criminal law arena. This issue's practice tip concerns the double-whammy attorneys' face when relying on unsworn and unaffirmed medical reports of medical professionals regarding motions for summary judgment. First, that medical professional must be a physician, osteopath or dentist (CPLR 2106) in order for his or her affirmation to carry the same weight as an affidavit. That means no chiropractors! (Casas v. Montero). Additionally, even relying on unaffirmed and unsworn medical reports of others can render an otherwise effective and affirmed affidavit by another medical professional useless and without probative value. Casas v. Montero; Singh v. DiSalvo. You've been warned!  

 

Mark A. Starosielec

[email protected]

 

Earl's Pearls

 

You don't like to pay for motion practice?  In some cases, we cannot blame you.  However, Earl Cantwell discusses the benefits of a well-target motion as a method of bringing closure to a lawsuit and protecting both the insured and the purse-strings.

 

What do we have to offer in this week's issue? 

·       One Good Disclaimer is All You Need

·       Intent of Parties to Contract was that Subcontractor Bound by Insurance Procurement Requirements of Main Contract, so Owner Additional Insured Under Sub's Policy

·       It's Tough to Prove Lack of Cooperation

·       Claims for Extra Contractual Damages, Treble Damages and Attorneys Fees Against Carrier Fail 

 

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

 

·       Signed, Identical Copy of Defendant's Doctor's Affirmation Saves the Day for the Defense

·       Summary Judgment Granted Against "Murphy's Law" Plaintiff

·       (Don't) Move For a Directed Verdict, Lose on the Issue of Serious Injury Determination   

·       Try, Try Again: Defendants Successfully Appeal SJ Denial   

·       Proof is in the Pudding: Summary Judgment Granted on Appeal

·       Verdict for Plaintiff Upheld as Plaintiff

·       Another Reversal: Defendants' Doctor Notes Significant ROM Limitations in Plaintiff

·       Gap in Treatment, Old Examination Sink Plaintiffs' SJ Survival Hopes

·       Verdict for Plaintiff Upheld as Plaintiff Suffered Serious Injury under the 90/180 Category

·       Unaffirmed Reports by Plaintiffs' Medical Experts Leads to Summary Judgment

·       Conducting IME 3 Years Post-MVA is Too Late to Make Prima Facie Showing on 90/180

·       Court to Doctors: Don't Just Opine; Talk to Your Patients Too!

·       Short and Sweet: Summary Judgment is Granted

·       Avoid Unsworn and Unaffirmed Medical Reports; Your Complaint Depends on It!

·       Herniated Discs? Yes. Causally Related to Subject MVA?  Merely Speculative

·       Plaintiff's Showing Herniated Discs and Permanent ROM Leads to SJ Survival

·       What Have You Done for Me Lately?

·       Conclusions Not Based on a Recent Examination of Plaintiff Leads to Summary Judgment

·       Failure to Address Plaintiff's Claims Leads to SJ Reversal & Reinstatement of Complaint

·       .But Don't Take My Word for It: Plaintiff's Doctor Should Have Reviewed Medical Records from Plaintiff's Prior Accidents

·       There's More to Life than Work: Missing 5 Weeks on the Job is Not Enough under 90/180

·       Infant Plaintiff Unable to Raise a Triable Issue of Fact Regarding the 90/180 SI Category

 

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 

·       IME Did Not Properly Support Denial of Lost Wages; Private Disability Plan Not Subject to Offset Provision

 

Litigation 

·       Default Judgment Vacated, But Insurer Must Pay

·       Summary Judgment Denied In Part Because Issue of Fact as to Admissibility of Peer Review

 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

·       Leaky Roof Caused by Rain Water, not Clogged Drains = Coverage Denied

·       Summer Homes Fall within in Definition of an Occasional Rental Premises

·       Part I - What Happens in NJ, Should at Least be Entitled to an Application of NJ Law

·       Part II - What happens in Canada, Should Stay in Canada

 

EARL'S PEARLS

Earl K. Cantwell, II

[email protected]

 

A Motion a Day Can Keep the Large Verdicts Away        

 

St. Patrick's Day 

            We note that St. Patrick's Day will come and go before the next issue of Coverage Pointers.  So we offer you a traditional St. Patrick's Day wish for your future:

 

May your blessings out number
The Shamrocks that grow
And may trouble avoid you
Wherever you go.

 

  May your troubles be less
And your blessing be more
And nothing but happiness
Come through your door.

 

All the best, from our door to yours.

 

Dan

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

 

 

3/4/08              Braun v. One Beacon Insurance Company
Appellate Division, Second Department
One Good Disclaimer is All You Need

On May 28, 2004, Annette Braun, driving a 1987 Ford, allegedly struck and injured a pedestrian, Perl, while driving her 1987 Ford motor vehicle, which was covered by an insurance policy issued by American Home Insurance Company. OneBeacon issued an insurance policy covering a 2000 Plymouth to Isidore Braun, Annette’s husband.  On July 7, 2004, the attorney for Perl notified the OneBeacon that he was representing Perl in connection with his claim for the personal injuries he sustained in the accident, and requested coverage information. The defendant responded to Perl's attorney by letter dated July 12, 2004, in which it disclaimed coverage because its named insured, Isidore Braun, was not involved in the accident. That letter further stated that the applicable coverage was from a policy issued by American Home.

American Home tendered its limits to Perl, which were rejected. In August 2004, the defendant was notified that Perl was seeking excess coverage from it and by letter dated September 16, 2004, the defendant again disclaimed coverage, on the ground that the vehicle involved in the accident was not a "covered auto" as defined in the defendant's policy.

The defendant's letter dated July 12, 2004, was a timely and effective disclaimer of coverage.  The September 16^th letter, based on the same policy provisions, while late, did not invalidate the first disclaimer dated July 12, 2004.

3/4/08              Carlisle SoHo East Trust, v. Lexington Insurance Company
Appellate Division, First Department
Intent of Parties to Contract was that Subcontractor Bound by Insurance Procurement Requirements of Main Contract, so Owner Additional Insured Under Sub’s Policy

The relevant contract demonstrates the sub-subcontractor's agreement to be bound by the insurance requirements of the subcontract incorporated by reference.  That included a requirement that the property owner be named as additional insured under the subcontractor’s primary and umbrella policies.  Accordingly, owner was entitled to coverage under the terms of the policy issued by defendant to its named insured, which contained a blanket contractual liability clause.

 

2/28/08            Matter St. Paul – Travelers Insurance Co. and Kreibich-D’Angelo

Appellate Division, Third Department
It’s Tough to Prove Lack of Cooperation
Karen Kreibich-D'Angelo (Karen) was hurt in a car accident in 2003, in a five-car collision.  The following day, Damphier, a driver of one of the cars, contacted Progressive, his insurer, to advise of the accident and give a statement.

In January of 2005, Damphier’s mother was sued in an action commenced by the Karen with service of process on Damphier’s mother.  Progressive was advised of Karen’s action in April 2005. Between April and May, Progressive tried to contact Damphier without success and in June, denied coverage due to lack of Damphier’s cooperation.  Karen then brought a claim for Uninsured Motorists Benefits against St. Paul, her carrier.  St. Paul brought an application to permanently stay arbitration, challenging the vitality of Progressive’s disclaimer.

The appellate court found that under the famous three-point “Thrasher Test” ( Thrasher v United States Liab. Ins. Co. 19 NY2d 159 [1967]), Progressive did not meet it burden of demonstrating the insured’s lack of cooperation, thus the disclaimer is invalid and the Uninsured Motorist claim is permanently stayed.

The test is easy to remember.  The insurer must demonstrate that:

1. It acted diligently in seeking to bring about the insured's co-operation; and that
2. The efforts employed by the insurer were reasonably calculated to obtain the insurer's co-operation; and that
3. The attitude of the insured, after his co-operation was sought, was one of “willful and avowed obstruction.”

Here, Progressive made efforts to locate Damphier through its database, directory assistance, Skiptrace and the information provided by him in his recorded statement. It also placed six telephone calls to what it believed to be Damphier's residence and left voicemail messages on all but two occasions. It then sent a reservation of rights letter was then sent by certified and first class mail to Damphier at his mother’s address.  It then made contact with someone purporting to be Damphier's brother who suggested that it contact the Maritime School in Maryland. Once the number he provided proved to be incorrect, it appears that no further efforts were made. In May 2005, someone claiming to be Damphier's sister advised Progressive that Damphier was residing with his mother at the "McCreary Avenue" address. When Progressive finally went to that address, at a time not disclosed in the record, no one was home. A denial letter was sent by certified and first class mail to Damphier at the "McCleary Avenue" address in June 2005.

Not enough, said the court. Progressive never explained the seeming confusion in the record between a McCleary Avenue address and a McCreary Avenue address, nor the discrepancy between McCleary Street and McCleary Avenue. Moreover, nothing in the record explains the failure to contact Damphier at his North Carolina address listed in the police accident report. Hence, with no evidence indicating that Damphier knew that Progressive was seeking his cooperation, and that he willfully refused to cooperate, the court refused to find that his attitude was one of “willful and avowed obstruction”

2/26/08            Kantrowitz v. Allstate Indemnity Company
Appellate Division, Second Department
Claims for Extra Contractual Damages, Treble Damages and Attorneys Fees Against Carrier Fail
A claim for punitive damages against an insurer does not constitute a separate cause of action for pleading purposes.  An insured may not recover attorneys’ fees, costs and disbursements when bringing an affirmative action to declare rights under a policy.  Similarly, New York courts do not recognize the recovery of a monetary penalty against an insurer for violation of the fair claims settlement statute. While a claim under the Deceptive Business Practices Act (General Business Law Section 349) could possibly be alleged, here, the plaintiff failed to allege that the defendants engaged in deceptive acts or practices that had a broad impact on consumers at large.

Editor’s Note: While this case was decided a few days after Bi-Economy¸ there was no discussion of the Court of Appeals decision by the Appellate Division. 

 

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

 

3/6/08              Batts v. Medical Express Ambulance Corp.

Appellate Division, First Department

Signed, Identical Copy of Defendant’s Doctor’s Affirmation Saves the Day for the Defense

The Appellate Division affirmed a lower court order which had granted the defendants’ motion for summary judgment dismissing the complaint. Defendants met their prima facie burden by submitting the affirmation of their expert orthopedist. Although defendants initially submitted the affirmation unsigned, the court properly permitted them to serve a signed, otherwise identical, copy of the affirmation with their reply papers, which caused no prejudice to plaintiff.  

 

 

Plaintiff’s unsworn MRI report noting a disc herniation at L5-S1 was admissible, as it was cited in the affirmations of both parties’ medical experts. However, in the absence of additional objective medical evidence of attendant significant physical limitations, it failed to establish an issue of fact.

3/6/08              Coston v. McGray

Appellate Division, Third Department

Summary Judgment Granted Against “Murphy’s Law” Plaintiff
In a what else could go wrong for the plaintiff case, the Appellate Division affirmed a lower court order which granted defendants’ summary judgment motion. His numerous pre-existing injuries stem from a series of unusual events. Plaintiff had fallen off a ladder 20 feet, been shot at (with a bullet still lodged in his upper chest) and been involved in a prior car accident in which his car flipped several times ejecting him from the vehicle.

 

Nevertheless, defendants made their prima facie showing by showing proof of his prior neck and back injuries.

 

3/4/08              DeSimone v. Royal GM, Inc.

Appellate Division, Second Department

(Don’t) Move For a Directed Verdict, Lose on the Issue of Serious Injury Determination  
Here, the defendants unsuccessfully appealed a judgment of the Supreme Court, which, inter alia, upon a jury verdict finding that the plaintiff sustained a serious injury and upon the denial of their oral application pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence.

 

By failing to move for a directed verdict pursuant to CPLR 4401 on the issue of whether the plaintiff sustained a “serious injury” under Insurance Law § 5102(d), the defendants implicitly conceded that the issue was for the trier of fact. Furthermore, the jury verdict finding, inter alia, that the plaintiff sustained a “significant limitation of use of a body function or system” should not be set aside as against the weight of the evidence, as it could have been reached on a fair interpretation of the evidence.

 

3/4/08              Ferraro v. Ridge Car Serv.

Appellate Division, Second Department

Try, Try Again: Defendants Successfully Appeal SJ Denial  
Here, the Appellate Division reversed the lower court order and granted the defendants’ motion for summary judgment dismissing the complaint. The defendants met their prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. To establish that she sustained a serious injury, the plaintiff was required to show the duration of the alleged injury and the extent or degree of the limitations associated therewith. While the plaintiff submitted evidence of a recent examination in which significant limitations in cervical and lumbar ranges of motion were noted by her treating osteopath, she failed to proffer competent medical evidence of any range-of-motion limitations in her spine that were contemporaneous with the subject accident.

 

 

3/4/08              Kaminski v. Kawamoto

Appellate Division, Second Department

Proof is in the Pudding: Summary Judgment Granted on Appeal
In another reversal, the Second Department held the defendant met his prima facie burden on his motion for summary judgment 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. The defendant’s neurologist, inter alia, noted numeric range of motion findings concerning the cervical and lumbar regions of the plaintiff's spine. In doing so, he compared those numeric findings to what is normal, thus establishing that the plaintiff had full range of motion in both regions of his spine. In opposition, the plaintiff failed to raise a triable issue of fact. Among other things, the plaintiff’s treating physician failed to compare any of her findings on range of motion to what is normal.

 

3/4/08              Kontomichalos v. County of Nassau

Appellate Division, Second Department

Verdict for Plaintiff Upheld as Plaintiff
In an action, inter alia, to recover damages for personal injuries, the defendants, appealed a lower court order which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Supreme Court correctly determined that the defendants did not satisfy their prima facie burden. In support of their motion, the defendants relied on the affirmed medical reports of their examining orthopedic surgeon and neurologist, which described significant limitations in the range of motion in the plaintiff’s cervical and lumbar spines. Under these circumstances, it is not necessary to consider whether the plaintiff’s papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact.

 

3/4/08              Wright v. AAA Constr. Servs., Inc.

Appellate Division, Second Department

Another Reversal: Defendants’ Doctor Notes Significant ROM Limitations in Plaintiff
The Appellate Division found fault with the trial court again and reversed their order, this time in plaintiff’s favor. As such, the defendants’ motions for summary judgment dismissing the complaint insofar as asserted against them are denied. The lower court erred in concluding that the defendants satisfied their respective prima facie burden. The defendants relied on submissions of the affirmed medical report of their examining orthopedic surgeon, who noted significant range of motion limitations in the plaintiff’s left shoulder upon examination two years post-accident. Accordingly, the defendants failed to establish their prima facie entitlement to judgment, and it is unnecessary to reach the question of whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact.

 

3/4/08              Wright v Rodriguez

Appellate Division, Second Department

Gap in Treatment, Old Examination Sink Plaintiffs’ SJ Survival Hopes

Breaking with the theme of this week (reversal), the Appellate Division affirmed an order from the Supreme Court, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury. The defendant William Rodriguez made a prima facie showing that neither plaintiff sustained a serious injury.

In opposition, the plaintiffs failed to raise a triable issue of fact. As to the plaintiff Raquel Wright, neither she nor her examining physician adequately explained the lengthy gap in her treatment between October 14, 2004, and her most recent examination on February 23, 2006. As to the plaintiff Hasan Precise, the affirmation of his treating physician submitted in opposition to the motion was not based on a recent examination, and thus the physician’s projections of permanent limitations had no probative value. Moreover, the physician’s opinion that Precise’s injuries and limitations were caused by the subject accident was speculative in light of the fact that the physician failed to acknowledge in his affirmation that Precise was involved in a prior automobile accident in 2002.

2/28/08            Talcott v. Zurenda

Appellate Division, Third Department

Verdict for Plaintiff Upheld as Plaintiff Suffered Serious Injury Under the 90/180 Category
Following a nonjury trial, the lower court found in favor of plaintiffs, concluding that plaintiff sustained a serious injury under the 90/180 category of serious injury. Defendants appeal.

The Appellate Division affirmed. Here, the plaintiffs presented the unrefuted testimony of an  orthopedic surgeon that plaintiff treated with since one week after the accident and who diagnosed him with “[c]hronic cervical, thoracic and lumbar syndrome,” which was secondary to the motor vehicle accident. The surgeon testified that the repeated range of motion tests which he qualitatively measured over a two-year period demonstrated a marked restriction of flexion, extension and rotation compared with normal results.

Since the date of the accident, plaintiff has been unable to return to his business of drilling wells, plumbing and installing heaters and air conditioners. The repetitive motions of pulling, twisting and lifting and other physical labor increased plaintiff’s pain and muscle spasms. In addition, plaintiff testified those restrictions prevented him from engaging in daily chores and activities that he regularly performed prior to the accident.

2/26/08            Casas v. Montero

Appellate Division, Second Department

Unaffirmed Reports by Plaintiffs’ Medical Experts Leads to Summary Judgment
In a lengthy opinion, the Appellate Division reversed a lower court order which had denied the defendant’s motion for summary judgment dismissing the complaint. Here, the defendant met his prima facie burden. In opposition, the plaintiffs failed to raise a triable issue of fact. The reports concerning the plaintiffs authored by Dr. Cotter, one of the plaintiffs’ treating chiropractors, were without any probative value. Since he is a chiropractor, he could not avail himself of CPLR 2106 to affirm the contents of his reports.

The reports of two treating physicians of the plaintiffs, were properly affirmed but did not raise a triable issue of fact. They relied on the unsworn reports of others in arriving at their conclusions. The affidavits of Dr. Alamilla, one of the plaintiffs’ treating chiropractors, were insufficient to raise a triable issue of fact since it is apparent that Dr. Alamilla relied on the unsworn reports of Dr. Cotter.

2/26/08            Hoisington v. Santos

Appellate Division, First Department
Conducting IME 3 Years Post-MVA is Too Late to Make Prima Facie Showing on 90/180

Here, the Appellate Division affirmed a lower court order which had denied defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102(d). Defendant doctor’s examination of plaintiff,  three years after the accident, was insufficient to establish that plaintiff was not incapacitated from performing substantially all of her customary and daily activities for 90 of the 180 days immediately following the accident.

 

2/26/08            Rico v. Figueroa

Appellate Division, Second Department

Court to Doctors: Don’t Just Opine; Talk to Your Patients Too!

Here, defendants successfully appealed an order which had denied its motion for summary judgment. The Appellate Division held the defendant met her prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Contrary to plaintiff’s contention, the papers he submitted in opposition to the defendant’s motion were insufficient to raise a triable issue of fact under the 90/180 category. The accident occurred on August 28, 2004. While plaintiff’s treating physician opined that he was unable to return to work full time until November 30, 2004, this was belied by plaintiff’s own deposition testimony in which he stated that he was able to return full time to work within 2 ½ months of the accident.

 

2/26/08            Robinson v. Vitek

Appellate Division, Second Department

Short and Sweet: Summary Judgment is Granted

Without getting into the specifics as to its reasons why, the Appellate Division affirmed a lower court order which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendant made a prima facie showing but the plaintiffs’ opposition papers were insufficient to raise a triable issue of fact.

 

2/26/08            Singh v. DiSalvo

Appellate Division, Second Department

Avoid Unsworn and Unaffirmed Medical Reports; Your Complaint Depends on It!

The Appellate Division affirmed a lower court order granting defendants’ summary judgment motion when it was determined plaintiff relied on unsworn and unaffirmed medical reports.

Initially, the defendants met their prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. The unaffirmed medical reports submitted by the plaintiff were without any probative value. The plaintiff’s examining orthopedic surgeon admitted in his affidavit that he relied upon the unsworn reports of others in coming to his conclusions.

 

2/21/08            Santana v. Khan

Appellate Division, First Department
Herniated Discs? Yes. Causally Related to Subject MVA?  Merely Speculative

While plaintiff may have suffered herniated discs, that was not enough to survive summary judgment. Here, defendant’s medical evidence showed plaintiff has normal range of motion in his cervical and lumbar spine and that he did not otherwise sustain a serious injury as a result of the accident. Summary judgment was properly granted as plaintiff’s opposition failed to adduce evidence of a limitation of range based on objective medical findings made within a reasonable time after the accident. In addition, in response to defendant’s showing of disc dessication and other degenerative findings in plaintiff’s spinal MRIs, plaintiff’s expert merely speculated that the injuries were causally related to the subject accident.

 

2/19/08            Casey v. Mas Transp., Inc.

Appellate Division, Second Department

Plaintiff’s Showing Herniated Discs and Permanent ROM Leads to SJ Survival

Here, the defendants unsuccessfully appealed a lower court order which denied their motion for summary judgment seeking dismissal of the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants did made a prima facie showing. In opposition, the plaintiff raised a triable issue of fact. The plaintiff’s treating physician established, based on his examinations of the plaintiff, as well as upon his review of the plaintiff’s lumbar MRI report, which showed herniated discs, that the plaintiff’s lumbar injuries and observed range of motion limitations were permanent and causally related to the subject accident.

 

2/19/08            Deutsch v.  Tenempaguay

Appellate Division, Second Department

What Have You Done for Me Lately?

Conclusions Not Based on a Recent Examination of Plaintiff Leads to Summary Judgment

The Appellate Division reversed a lower court order which had denied defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendant made a prima facie showing. In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation and report of the plaintiff’s treating physician were insufficient since the physician’s conclusions were not based on a recent examination of the plaintiff. Furthermore, neither the plaintiff nor his experts proffered competent medical evidence that was even roughly contemporaneous with the subject accident showing range-of-motion limitations in his spine.

 

2/19/08            Joseph v. Hampton

Appellate Division, Second Department

Failure to Address Plaintiff’s Claims Leads to SJ Reversal & Reinstatement of Complaint

In another reversal, the Appellate Division agreed with plaintiff and determined that contrary to the lower court’s determination, the defendant failed to establish her prima facie showing that plaintiff did not suffer a serious injury. The defendant’s motion papers failed to adequately address plaintiff’s claim that he sustained a serious injury under the 90/180 category following the accident. More than two years post accident, plaintiff testified he was unable to, and never did, return to work. Further, nearly 3½; years after the accident, the defendant’s examining orthopedic surgeon and examining neurologist conducted separate examinations of plaintiff. Neither physician related his medical findings to this category of serious injury for the period of time immediately following the accident.

 

2/19/08            Penaloza v. Chavez

Appellate Division, Second Department

…But Don’t Take My Word for It:

Plaintiff’s Doctor Should Have Reviewed Medical Records from Plaintiff’s Prior Accidents

Plaintiff’s doctor’s analysis was rendered speculative by failing to review plaintiff’s medical records from two prior accidents. By just taking plaintiff’s word that she had fully healed, plaintiff was unable to raise a triable issue of fact, and defendants successfully appealed the lower court order which had denied their motion for summary judgment dismissing the complaint. While defendants made a prima facie showing, the plaintiff failed to raise a triable issue of fact in opposition. The affirmation of the plaintiff’s treating neurologist noted significant range of motion limitations in the plaintiff’s cervical and lumbar spine. Despite the fact that he concluded that the injuries and limitations were the result of the subject accident and were permanent, he failed to adequately address the fact that the plaintiff had two prior accidents in which she injured her back and neck. While he did make a notation in his affirmation that she was involved in the two prior accidents, he merely took the plaintiff’s word that she had recovered. Due to his failure to adequately address these two prior accidents, his conclusions that the injuries and limitations were the result of the subject accident were clearly rendered speculative.

 

2/19/08            Sanchez v. Williamsburg Volunteer of Hatzolah, Inc.

Appellate Division, Second Department
There’s More to Life than Work: Missing 5 Weeks on the Job is Not Enough under 90/180
Here, defendants successfully appealed a lower court order, which had denied their motion for summary judgment dismissing the complaint. The Appellate Division held the defendants made a prima facie showing, through the plaintiff’s deposition testimony, that the plaintiff did not sustain a serous injury. At his deposition, the plaintiff testified he missed approximately five weeks from his job as a welder. Nevertheless, the plaintiff’s alleged injuries did not prevent him from performing “substantially all” of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident. The evidence which the plaintiff presented in opposition to the motion failed to raise a triable issue of fact.
 

2/19/08            Wu v. Braga

Appellate Division, Second Department
Infant Plaintiff Unable to Raise a Triable Issue of Fact Regarding the 90/180 SI category

While his age was not announced by the Appellate Division, it nonetheless held the infant plaintiff Wu did not raise a triable issue of fact after defendant made a prima facie showing. As such, the lower court order granting defendant’s motion for summary judgment was affirmed. The infant plaintiff was unable to show he was prevented from performing substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident.

 

 

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

 

2/27/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

IME Did Not Properly Support Denial of Lost Wages; Private Disability Plan Not Subject to Offset Provision

The Applicant, eligible injured person (“EIP”), sought $27,349.89 in lost wages and chiropractic care that was denied by the insurer based upon multiple independent medical examinations (“IME”).

The Applicant was involved in an April 24, 2004, motor vehicle accident and came under the care of a chiropractor and what appears to be a primary care physician.  The Applicant was employed by Delphi Corporation but at the time of the accident was out of work on disability due to a February 17, 2003, injury.  The Applicant’s evidence indicated that he was scheduled to be released back to work on June 10, 2004, but had this accident which prohibited him from doing so.

The insurer had the Applicant undergo four IMEs with two of them being re-evaluations.  The first two IMEs occurred on July 20, 2004, with an orthopedist and a chiropractor.  Both specialties diagnosed the Applicant with resolving cervical and lumbar sprain/strain.  Both specialties recommended continued orthopedic and chiropractic care three times per week for six weeks.  In addition, the Applicant was found to be able to perform all activities of daily living and his job but could not perform heavy lifting or pulling.  Accordingly, the insurer issued a denial dated August 13, 2004, denying, among other things, lost wages. 

The insurer also issued a second denial dated August 27, 2004, for lost wages on the ground that the Applicant’s employer advised that the Applicant was not working at the time of the accident and was not scheduled to return to work.

On October 2, 2004, the Applicant underwent an orthopedic and chiropractic re-evaluation.  The specialties determined that the Applicant had resolved cervical and lumbar sprain/strain.  Also, no further medical treatment was required and the Applicant was not disabled.  The insurer denied all medical treatment and lost wages again on October 5, 2004, effective October 11, 2004.

The Arbitrator declined to uphold the insurer denial for medical expenses and lost wages.  The insurer failed to support its denial dated August 27, 2004, with any evidence.  Also, the denials based upon the IME reports failed to have IME reports that adequately supported the termination of lost wages.

The insurer argued that it was entitled to an offset for the disability benefit payments made under a disability policy provided by the Applicant’s employer.  The Arbitrator held that this disability plan did not qualify under the regulations as an offset.   

2/26/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

Peer Review Sufficient Demonstrates Dental Expenses Not Medically Necessary

The Applicant, eligible injured person (“EIP”), sought reimbursement of dental expenses purportedly arising out of a May 11, 2007, motor vehicle accident.  The insurer denied the dental expenses based upon a peer review conducted by Dr. Alan Maltman.  Dr. Maltman concluded in his report that the Applicant’s teeth #7, 8, 25 nearly a year before the accident were noted as hopeless and having severe periodontal disease.  The treating dentist was waiting for a pre-determination from the Applicant’s private health insurer before extracting and inserting a bonded bridge.  Dr. Maltman concluded that the Applicant’s condition at teeth #7, 8, 25 were pre-existing and unrelated to the accident.

The Arbitrator, relying upon West Tremont Med. Diag., P.C. v. Geico Ins. Co., 13 Misc.3d 131(A) (App. Term 2d & 11^th Dists. 2006), held that the insurer’s denial was appropriate.  Further, the Applicant, under West Tremont, failed to refute the insurer’s sufficient evidence to establish its defense of lack of medical necessity.

Litigation

 

3/3/08              Fortune Med. P.C. a/a/o Igor Brindzei v.

Eveready Ins. Co., Appellate Term, Second Department

Default Judgment Vacated, But Insurer Must Pay

The insurer’s motion to vacate a default judgment should have been granted due to the court’s policy to favor case disposition on the merits and not by default judgment.  However, the insurer was ordered to pay the plaintiff $750.00 within 10 days.

 

3/3/08              Mani Med, P.C. a/a/o Michelle Clarke v.

Eveready Ins. Co., Appellate Term, Second Department

Summary Judgment Denied In Part Because Issue of Fact as to Admissibility of Peer Review

The plaintiff’s summary judgment motion was vacated then granted only for judgment in the amount of $746.01 with the matter remanded for interest calculation and attorney’s fees.  The insurer opposed the plaintiff’s motion arguing lack of prima facie case due to nonexistence of a valid assignment; a deductible application applied barring the claim; and lack of medical necessity based upon peer reviews.  The plaintiff replied to the last argument that the insurer’s peer review reports were not in admissible form under CPLR §2106 since the physician signatures were stamped or computer generated.  The lower court agreed and granted the plaintiff’s motion in full.

 

On appeal, the insurer argued that the plaintiff did not make a prima facie case as it did not provide a valid assignment.  Rather, the purported assignment indicated that the assignor’s signature was on file. The Court, citing Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins., 9 NY3d 312 (2007), rejected this argument as the insurer failed to timely request additional verification on this issue.

 

The Court did find merit in the insurer’s argument that its peer review reports with a stamped or computer generated signature were admissible.  The Court held that plaintiff’s reply papers only raised an issue of fact as to whether the peer review reports were evidence in admissible form

 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

3/06/08            Kennel Delites, Inc. v T.L.S. NYC Real Estate, LLC

Appellate Division, First Department

Leaky Roof Caused by Rain Water, not Clogged Drains = Coverage Denied

Plaintiff sought coverage under a commercial property policy for losses to interior covered property and business income.  Upon receipt of the claim, plaintiff’s carrier denied the request for coverage by relying upon an exclusion which removed coverage for damages arising from rain. 

 

Plaintiff sought to overturn carrier’s denial by arguing that the damages it sustained were occasioned by debris and mortar which fell from a neighboring premises.  According to plaintiff’s argument, the water damage was caused as a result of the building’s drains being clogged by the aforementioned debris. 

 

Nice try, but the Court ruled that the cause of the damage was the “rainwater itself.”  Moreover, the Court noted that a reasonable person would “conclude…that the interior property was damaged by rainwater…and would look no further for alternative causes.”  Accordingly, carrier’s denial was upheld.

 

2/28/08            Villanueva v. Preferred Mut. Ins. Co.

Appellate Division, Third Department

Summer Homes Fall within in Definition of an Occasional Rental Premises

Insured/plaintiff’s summer home was destroyed by fire in January of 2005.  At the time of the fire, the premises had been rented by the insured to a third party for the entire 2004/2005 winter ski season.  As a result, plaintiff sought coverage under its policy with defendant/carrier for the loss of the premises and $121,500 in lost personal property located within the premises.

 

Relying upon a limitation of coverage within the policy which limited recovery of lost personal property, carrier offered only $2,500 to its insureds.  The provision relied upon by carrier limited exposure to “personal property used, in whole or in part, for ‘business purposes’.”   Business purposes were defined in the policy as, among other things, “the rental of property to others.”  However, the policy also contained a caveat to the limitation on personal property which provided that coverage would not be limited due to the occasional rental of an insured premises.

 

To combat this exception to the limitation, carrier argued that the ski season rental was not an “occasional rental.”  Under carrier’s interpretation, (which the Court noted was not defined within the terms of the policy), the term occasional implied a term that occurred at “irregular or infrequent intervals.” 

 

The Third Department disagreed, and ruled that the under standing precedent directly on point in this issue vacation rentals fell within the “occasional rental” exception.  In turn, carrier’s reliance upon the limitation for personal property used for business purposes was inapplicable to the current claim.  Thus, the insured’s motion for summary judgment on the issue of coverage was affirmed.

 

3/06/08            Stephen L. Brenner, M.D. v Hartford Life Ins. Co.

Appellate Division, First Department

Part I - What Happens in NJ, Should at Least be Entitled to an Application of NJ Law

Despite plaintiff’s best efforts to bring the above case in a New York court, the First Department affirmed the trial court’s decision to apply New Jersey law.  Because the policy was formed, executed and delivered in New Jersey, the subject matter covered was located in New Jersey, and the insured’s personal and business addresses were both located in New Jersey, the Court understandably ruled that New Jersey had the “most significant relationship with the… transaction.” 

 

3/04/08            Alberta & Orient Glycol Co., Ltd. v Factory Mut. Ins. Co.

Appellate Division, First Department

Part II – What Happens in Canada, Should Stay in Canada

This matter arose from defendant’s decision to deny coverage to plaintiff for a loss at a chemical reaction facility in Alberta, Canada.   For some reason, the dispute found its way to New York County despite the fact that plaintiff and most of the defendants were domiciled outside the State of New York. 

 

As a result of the various parties’ tenuous connection to New York, the First Department ruled that the plaintiff was unable to satisfy the State’s long arm jurisdiction provision.  As a result, the action was dismissed for failure to establish the Court’s personal jurisdiction over the matter.

 

Furthermore, the Court noted that even if personal jurisdiction could be obtained, the matter was also dismissed on forum non conveniens grounds.  In support of this conclusion, the Court noted that plaintiff and most defendants were domiciled outside of New York. In addition, the site of the loss, the records, files and witnesses were all located in Canada and bore no relationship with New York.  Finally, the Court noted that related litigation was also pending before a Canadian court.

EARL’S PEARLS

Earl K. Cantwell, II

[email protected]

 

A Motion a Day Can Keep the Large Verdicts Away

 

            Many times, even in complicated and legally contested cases, motions to dismiss and pre-Answer motions are eschewed and ignored.  Various explanations are given such as “Motions are too expensive”; “A Motion will reveal too much of our defense strategy”; and “This Judge will not rule in our favor anyway.” However, a well-founded pre-Answer motion to dismiss can eliminate causes of action, strike certain damages, and winnow out claims to immediate advantage and possible future success, i.e., by summary judgment motions, motions in limine, or eliminating or reducing plaintiff’s expert proof.

 

            For example, a mass tort or other toxic tort complaint usually has several asserted causes of action and alleged types of damages. Rather than simply submit an Answer with affirmative defenses, aggressive defense can begin immediately to carefully review and prune out legally invalid or poorly stated claims by a pre-Answer motion to dismiss:

 

·        Intentional or quasi-intentional torts such as “trespass” or assault

which may be time-barred or otherwise not applicable.  See, e.g., Williams v. Abrams, 2007 Conn. Super. Lexis 535 (Sup. Ct. Conn 2007) (Intentional tort claims dismissed from mold case);

 

·        Claims of “fraud” or misrepresentation, which may not be well-

pled under pleading rules, or should be barred by or subsumed within breach of contract claims.  Anderson v. USAA Casualty Insurance Company, 221 F.R.D. 250 (D.C. D.C. 2004) [Claims of negligent misrepresentation regarding remediation of mold-contamination disallowed for lack of pleading specificity under FRCP 9(b)].

 

·        Tort claims such as negligence, which may be trumped by

contractual claims or provisions. In re: Stucco Litigation, 364 F. Supp.2d 539 (E.D.N.C. 2005) (Negligence and tort claims as to mold barred by “economic loss” doctrine and contract rights and remedies);

·        Causes of action such as “intentional infliction of emotional

distress,” which may not be applicable, or have specific (and often detailed) time and pleading requirements. See, e.g., Greene v. Plano Independent School District, 2004 U.S. App. Lexis 13255 (Section 1983 claim dismissed as crux of mold claim was negligence);

 

·        Punitive damages claims, which may be far-fetched and legally not

recoverable -- as in most breach of contract claims;

 

·        Claims for attorneys’ fees which may not be recoverable, as in

New York, where they are generally not recoverable absent an agreement or statutory provision; and

·        Claims and damages where the plaintiff may not have fulfilled or

pleaded compliance with conditions precedent, such as notice to an owner or landlord, written notice of claim to a contractor or municipality, or making any warranty claim

.

            A pre-Answer motion can commence the process of eliminating baseless claims, limiting the causes of action, and narrowing the case for subsequent motions and defense.

 

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

 

2/28/08            Koch & Sons v. Great West Casualty
Eighth Circuit Court of Appeals
Retention Triggered By Insurer’s Settlement Despite Insured’s Objection
Plaintiff and defendant insurer entered into a $3 million dollar liability policy with a self-insured retention of $500,000. A fatal accident resulted in a lawsuit against several parties, including the owner of a tractor that was hauling a leased trailer owned by a Koch subsidiary. Over the objection of the insured, the insurer accepted coverage for the accident on the basis that the owner of the tractor as an additional insured. Appellate Court affirmed trial court’s findings that the policy covered the lessee of plaintiff's trailer; the insurer did not breach its fiduciary duty to plaintiff when it accepted coverage and settled a claim, over the insured’s objection, even though the settlement triggered plaintiff's obligation to pay $500,000 under the self-insured retention provision of the policy.

Submitted by: Howard Merten and Keith E. Fayan (Partridge Snow & Hahn LLP)

 

2/25/08            Levy v. Minnesota Life Insurance Company

Seventh Circuit Court of Appeals
Injury Held Not to be a Proximate Cause of Disability Under Insurance Contract
Insurer provided two policies to Plaintiff; one policy provided for lifetime disability benefits if Plaintiff became unable to work due to a “sickness” and the second policy provided for benefits until age 65 if Plaintiff became unable to work due to an “injury.” Insured injured his knee playing basketball and two years later underwent surgery. Seven years after surgery, Plaintiff became unable to work due to a degenerative joint disease. Plaintiff argued that “due to” was undefined and an ambiguous term under the policy, and thus should include not only direct causation but also proximate causation, and further argued the basketball injury was a proximate cause of his inability to work. The court indicated that “due to” most likely was unambiguous under the policy, including direct causation only. The court affirmed the summary judgment against the insured on the basis that there was not even proximate causation between the basketball injury and the ultimate disability.

Submitted by: Howard Merten and Alicia J. Byrd (Partridge Snow & Hahn LLP)

 

REPORTED DECISIONS

 

Casey v. Mas Transp., Inc.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto of counsel), for appellants.
Gary P. Kauget, P.C., Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated May 18, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants 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 raised a triable issue of fact as to whether she sustained a permanent consequential limitation of use of her lumbar spine via the submissions of her treating physician (see Green v Nara Car & Limo, Inc. 42 AD3d 430; Lim v Tiburzi, 36 AD3d 671; Shpakovskaya v Etienne, 23 AD3d 368; Clervoix v Edwards, 10 AD3d 626; Acosta v Rubin, 2 AD3d 657; Rosado v Martinez, 289 AD2d 386; Vitale v Lev Express Cab Corp., 273 AD2d 225). The plaintiff's treating physician established, based on his contemporaneous and most recent examinations of the plaintiff, as well as upon his review of the plaintiff's lumbar magnetic resonance imaging report, which showed, inter alia, herniated discs, that the plaintiff's lumbar injuries and observed range of motion limitations were permanent and causally related to the subject accident. He concluded, in his most recent affirmed medical report, that the plaintiff's injuries amounted to a permanent consequential limitation of use of her lumbar spine. Contrary to the defendants' assertions, the affidavit of the plaintiff adequately explained any gap in her treatment history (see Black v Robinson, 305 AD2d 438). RIVERA, J.P., LIFSON, RITTER and CARNI, JJ., concur.

Deutsch v  Tenempaguay

Baker, McEvoy, Morrissey & Moskovits, P.C. (Thomas Torto, New York, N.Y., of counsel), for appellant.
Law Offices of Marcel Weisman, LLC, New York, N.Y. (Ezra Holczer 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 (Schneier, J.), dated May 25, 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 for summary judgment dismissing the complaint is granted.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury by virtue of sustaining either a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system, 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 to the defendant's showing, the plaintiff failed to raise a triable issue of fact. The affirmation and report of the plaintiff's treating physician were insufficient to raise a triable issue of fact as to whether the plaintiff sustained an injury within those catergories since the physician's conclusions were not based on a recent examination of the plaintiff (see Amato v Fast Repair Inc., 42 AD3d 477; Ali v Mirshah, 41 AD3d 748; Mejia v DeRose, 35 AD3d 407; Elgendy v Nieradko, 307 AD2d 251). Furthermore, neither the plaintiff nor his experts proffered competent medical evidence that was even roughly contemporaneous with the subject accident showing range-of-motion limitations in his spine (see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731).

The submission of the plaintiff's magnetic resonance imaging reports concerning the cervical and lumbar regions of his spine were insufficient to raise a triable issue of fact. The mere existence of a herniated or bulging disc is not evidence of a serious injury where, as here, objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration is absent (see Siegel v Sumaliyev, 46 AD3d 666; Roman v Fast Lane Car Service, Inc., 46 AD3d 535; Mejia v DeRose, 35 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). Moreover, the self-serving affidavit of the plaintiff was insufficient to raise a triable issue of fact as to whether he sustained a serious injury under any statutory definition of the term (see Elder v Stokes, 35 AD3d 799; Brobeck v Jolloh, 32 AD3d 526; Fisher v Williams, 289 AD2d 288). MASTRO, J.P., FISHER, FLORIO, ANGIOLILLO and DICKERSON, JJ., concur.

Joseph v Hampton

Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell Dranow
of counsel), for appellants.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and
Gilbert J. Hardy of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated October 31, 2006, which, in effect, granted the defendant's motion for summary judgment, in effect, dismissing the first and second causes of action 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 reversed, on the law, with costs, and the motion for summary judgment, in effect, dismissing the first and second causes of action is denied.

Contrary to the Supreme Court's determination, the defendant failed to establish her prima facie entitlement to judgment as a matter of law with respect to the first cause of action, since she failed to demonstrate that the plaintiff Pierre Joseph 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). The defendant's motion papers failed to adequately address Joseph'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. The accident occurred on May 8, 2002. On August 23, 2005, Joseph testified at his deposition that, as a result of the accident, he was unable to, and never did, return to work after the accident. In October 2005, which was nearly 3½; years after the accident, the defendant's examining orthopedic surgeon and examining neurologist conducted separate examinations of Joseph. Neither physician related his medical findings to this category of serious injury for the period of time immediately following the accident (see DeVille v Barry, 41 AD3d 763, 763-764; Torres v Performance Auto. Group, Inc., 36 AD3d 894, 895; Sayers v Hot, 23 AD3d 453, 454). Furthermore, while Joseph also alleged in his bill of particulars that he sustained, among other injuries, a medial tear of the posterior horn of the medial meniscus of his right knee, neither physician indicated that he performed any objective tests with respect to this alleged injury, or even whether he examined Joseph's right knee (see Gerson v C.L.S. Transp., Inc., 37 AD3d 530, 531; Villavicencio v Mieles, 7 AD3d 517; Morales v New York City Tr. Auth., 287 AD2d 604, 604-605).

In addition, contrary to the Supreme Court's determination, the defendant also failed to establish her prima facie entitlement to judgment as a matter of law with respect to the second cause of action, since she failed to demonstrate that the plaintiff Jacqueline Moise did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Among the medical submissions relied on by the defendant was her examining orthopedic surgeon's affirmed medical report, which identified a significant limitation of range of motion in Moise's lumbosacral spine (see Joissaint v Starrett-1 Inc., 46 AD3d 622; Avrashkova v Paul, 44 AD3d 976, 977; Friedman v Albert, 44 AD3d 897, 898).

Since the defendant failed to meet her initial burden with respect to either of the plaintiff's causes of action to recover damages for personal injuries, it is unnecessary to consider whether the plaintiffs' papers, submitted in opposition, were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).
PRUDENTI, P.J., SKELOS, MILLER, COVELLO and McCARTHY, JJ., concur.

Penaloza v Chavez

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),            for appellants.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Ramon G. Chavez and Jose F. Rosa appeal from an order of the Supreme Court, Queens County (Kelly, J.), entered May 22, 2007, which 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, on the law, with costs, and the motion of the defendants Ramon G. Chavez and Jose F. Rosa for summary judgment dismissing the complaint insofar as asserted against them is granted.

The defendants Ramon G. Chavez and Jose F. Rosa (hereinafter the appellants) 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 Elyer, 79 NY2d 955, 956-957; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50).

In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's treating neurologist, Dr. David Zelefsky, noted significant range of motion limitations in the plaintiff's cervical and lumbar spine based on recent and contemporaneous range of motion testing. Despite the fact that he concluded that the cervical and lumbar spine injuries and limitations were the result of the subject accident and were permanent, he failed to adequately address the fact that the plaintiff had two prior accidents in which she injured her back and neck. While he did make a notation in his affirmation that she was involved in the two prior accidents, he merely took the plaintiff's word for the fact that the plaintiff recovered from any injuries sustained therein. Dr. Zelefsky never reviewed any of the plaintiff's prior medical records related to those accidents (see Vidor v Davila, 37 AD3d 826). Due to his failure to adequately address these two prior accidents, his conclusions that the injuries and limitations noted in the plaintiff's cervical and lumbar spines were the result of the subject accident were clearly rendered speculative (see Vidor v Davila, 37 AD3d 826; Moore v Sarwar, 29 AD3d 752; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470).

The magnetic resonance imaging reports of the cervical, thoracic, and lumbar regions of the plaintiff's spine revealed merely that, as of mid-2006, she showed evidence of bulging discs in the lumbar and thoracic spine, as well as a herniated disc in the cervical spine. 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 Seigel v Sumaliyev, 46 AD3d 666; Mejia v De Rose, 35 AD3d 407, 407-408; Yakubov v CG Trans. Corp., 30 AD3d 509, 510; Cerisier v Thibiu, 29 AD3d 507, 508; Bravo v Rehman, 28 AD3d 694, 695; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50; Diaz v Turner, 306 AD2d 241, 242). Moreover, none of the plaintiff's treating radiologists gave any opinion in their reports as to the cause of the pathology noted within those reports (see Collins v Stone, 8 AD3d 321, 322). The plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether she sustained a serious injury within the meaning of the no-fault statute (see Roman v Fast Lane Car Service, Inc., 46 AD3d 535; Fisher v Williams, 289 AD2d 288, 289). The plaintiff failed to proffer competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Sainte-Aime v Ho, 274 AD2d 569, 569-570).
MASTRO, J.P., FISHER, FLORIO, ANGIOLILLO and DICKERSON, JJ., concur.

Sanchez v Williamsburg Volunteer of Hatzolah, Inc.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Balter, J.), dated November 27, 2006, which denied their motion for summary judgment dismissing the complaint on the ground, inter alia, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants made a prima facie showing, through the plaintiff's deposition testimony, that the plaintiff did not sustain a serous 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 855; Kearse v New York City Tr. Auth., 16 AD3d 45, 51-52). At his deposition, the plaintiff testified that, as a result of the subject motor vehicle accident, he missed approximately five weeks from his job as a welder. The plaintiff's alleged injuries did not prevent him from performing "substantially all" of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (see Letellier v Walker, 222 AD2d 658). The evidence which the plaintiff presented in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212[b]). In view of the foregoing, we need not address the defendants' remaining contention.
PRUDENTI, P.J., LIFSON, COVELLO and BALKIN, JJ., concur.

Batts v. Medical Express Ambulance Corp.

Steven Siegel, P.C., Kew Gardens (Steven Siegel of counsel), for appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Kisha V. Augustin of counsel), for respondents.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered April 3, 2007, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants satisfied their burden of establishing prima facie entitlement to summary judgment on plaintiff's claims of permanent and significant limitations by submitting the affirmation of their expert orthopedist. Although defendants initially submitted the affirmation unsigned, the court properly permitted them to serve a signed, otherwise identical, copy of the affirmation with their reply papers, which caused no prejudice to plaintiff (see Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]; DiLeo v Blumberg, 250 AD2d 364, 365 [1998]).

Plaintiff's unsworn MRI report noting a disc herniation at L5-S1 was admissible, as it was cited in the affirmations of both plaintiff's and defendants' medical experts (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]). However, in the absence of additional objective medical evidence of attendant significant physical limitations, it failed to establish an issue of fact (see Lloyd v Green, 45 AD3d 373, 374 [2007]). The finding of a limited range of motion in plaintiff's lumbar spine was not made as a result of a medical examination until nearly 15 months after the accident and is too remote to raise a triable issue as to causation (see Lopez v Simpson, 39 AD3d 420, 421 [2007]; Lloyd at 374). Moreover, plaintiff offered no expert assessments, either quantitative or qualitative, of the condition of his cervical spine and left shoulder (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]).

Defendants' objective medical evidence indicating that plaintiff did not suffer disabling injuries as a result of the accident established their prima facie entitlement to summary judgment on plaintiff's claim that he experienced substantial curtailment of his daily activities for 90 of the first 180 days following the accident (see Lloyd, 45 AD3d at 373-374; Lopez, 39 AD3d at 421). In opposition, plaintiff failed to raise a triable issue of fact in the form of competent objective evidence substantiating his 90/180-day claim (see Ortega v Maldonado, 38 AD3d 388 [2007]).

 

 

Coston  v. McGray

 

Calendar Date: January 9, 2008
Before: Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ.


Schonberg Law Office of the Hudson Valley, P.C.,
Central Valley (Susan R. Nudelman, Dix Hills, of counsel), for appellants.
Hanson & Fishbein, Albany (Richard J. Fishbein of
counsel), for Rosa Coston and another, respondents.
Law Office of Michael M. Emminger, Albany (Joan Matalavage of counsel), for Amy Friedman and another, respondents.
Wilson, Elser, Moskowitz, Edelman & Dicker,
L.L.P., New York City (Jamie Kulovitz of counsel), for Charlotte Carr, respondent.

MEMORANDUM AND ORDER


Mercure, J.P.

Appeal from a judgment of the Supreme Court (Work, J.), entered January 5, 2007 in Ulster County, which, among other things, granted defendants' cross motions for summary judgment dismissing the complaint.

Plaintiff Willie Coston (hereinafter plaintiff) and his wife, derivatively, commenced this action to recover for injuries to his cervical and lumbar spine allegedly sustained in two motor vehicle accidents in November 2002 and February 2003. Following joinder of issue, Supreme Court ultimately granted summary judgment dismissing the complaint, concluding that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of either accident. Plaintiffs appeal and we now affirm.

"[E]ven where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and the claimed injury such as . . . a preexisting condition summary dismissal of the complaint may be appropriate" (Pommells v Perez, 4 NY3d 566, 572 [2005]). Here, defendants met their initial burden by submitting the report of an independent medical examiner who, based upon his review of plaintiff's medical records and a medical history taken from plaintiff, detailed prior injuries to plaintiff's cervical and lumbar spine. Specifically, the report reveals that plaintiff was knocked off a ladder in 1992, causing him to fall 20 feet and to suffer disc herniation, severe back pain, and upper extremity and shoulder pain. Plaintiff was ultimately diagnosed with low back syndrome, lumbar radiculopathy and cervical syndrome, and was still suffering back pain, degenerative disc disease, sciatica, and using a cane six years after the fall. In addition, the report noted that a bill of particulars related to the fall alleged that plaintiff had suffered injury to his neck. Moreover, during the course of treatment as a result of that fall, plaintiff also revealed that he had a prior gunshot wound in the upper left chest and that a bullet lodged there caused him "difficulty with his neck and difficulty using his left arm."

The independent medical examiner's report further revealed that in 1999, plaintiff was involved in a motor vehicle accident in which the car flipped several times and he was ejected from the vehicle. Thereafter, he complained of double vision, pain in the back, shoulders and knees, and numbness in his feet and left leg. Plaintiff also fell in December 2000, aggravating his low back pain, and he was diagnosed with lumbar radiculopathy approximately one year prior to the first of the two car accidents at issue here. Notably, although he denied ever having any problems with his neck in his deposition testimony, plaintiff confirmed that the 1992 fall and 1999 accident caused him significant back injuries.^[FN1]

In light of this proof of prior neck and back injuries, the burden shifted to plaintiffs to "com[e] forward with evidence indicating a serious injury causally related to the [subject] accident[s]" (Pommells v Perez, 4 NY3d at 579; see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007] [explaining that "[o]nce a defendant has presented evidence of a preexisting injury, even in the form of an admission made at a deposition, it is incumbent upon the plaintiff to present proof to meet the defendant's asserted lack of causation"]; McCarthy v Bellamy, 39 AD3d 1166, 1167 [2007] [finding summary dismissal appropriate where the plaintiff failed to address evidence of preexisting condition]; Figueroa v Castillo, 34 AD3d 353, 353-354 [2006] [concluding that evidence of prior and subsequent injuries to same knee established additional contributing factors shifting the burden of proof to the plaintiff]). The evidence submitted by plaintiffs in opposition, however, did not refute defendants' showing of preexisting injuries. Plaintiffs relied solely upon the affirmation of Luis Mendoza Jr., who began treating plaintiff in December 2002, following the first of the two accidents at issue here. That affirmation provides no objective basis for concluding that plaintiff's injuries were caused by these two accidents rather than the prior gunshot, accidents and falls; indeed, Mendoza's affirmation makes no reference at all to the prior incidents and injuries. As such, "there is an inadequate foundation to support [Mendoza's] conclusion that plaintiff's medical conditions are causally related to the accident[s]" at issue and Supreme Court properly dismissed the complaint (Maye v Stearns, 19 AD3d 902, 903 [2005]; see Pommells v Perez, 4 NY3d at 579-580; Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Montgomery v Pena, 19 AD3d 288, 290 [2005]).

Plaintiffs' remaining arguments are either not properly before us or, upon consideration, have been found to be lacking in merit.

Spain, Rose, Lahtinen and Kane, JJ., concur.

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

Footnotes

Footnote 1:The independent medical examiner's report also indicated that plaintiff was in another car accident in 2004 after the two incidents at issue here causing him neck pain.

DeSimone v. Royal GM, Inc.

Cheven Kelly & Hatzis, New York, N.Y. (Thomas Torto and Jason
Levine of counsel), for appellants.
Chelli & Bush, Staten Island, N.Y. (Laurel A. Wedinger of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from (1) a judgment of the Supreme Court, Richmond County (Gigante, J.), dated October 26, 2006, which, inter alia, upon a jury verdict finding that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) and awarding the plaintiff damages in the principal sums of $100,000 for past pain and suffering and $250,000 for future pain and suffering, and upon the denial of their oral application pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and to set aside the damages awards as excessive, is in favor of the plaintiff and against them in the total sum of $353,799.99, and (2) an order of the same court dated December 29, 2006, which denied their motion pursuant to CPLR 4404(a) to set aside the damages awards as excessive.

ORDERED that the judgment and the order are affirmed, with one bill of costs.

By failing to move for a directed verdict pursuant to CPLR 4401 on the issue of whether the plaintiff sustained a "serious injury" under Insurance Law § 5102(d), the defendants implicitly conceded that the issue was for the trier of fact (see Miller v Miller, 68 NY2d 871, 873; Hurley v Cavitolo, 239 AD2d 559). Furthermore, the jury verdict finding, inter alia, that the plaintiff sustained a "significant limitation of use of a body function or system" should not be set aside as against the weight of the evidence, as it could have been reached on a fair interpretation of the evidence (see Bendersky v M & O Enters. Corp., 299 AD2d 434, 435). Lastly, the jury award of damages for the plaintiff's rotator cuff injury and herniated cervical disc did not deviate from what would be reasonable compensation (see CPLR 5501; Severin v Benenati, 251 AD2d 316, 317). RITTER, J.P., FLORIO, CARNI and LEVENTHAL, JJ., concur.

Ferraro v. Ridge Car Serv.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto and Jason Levine of counsel), for appellants.
Andrew Hirschhorn, Rosedale, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated June 6, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants met their prima facie burden of 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. On appeal, the plaintiff claims that her submissions raised a triable issue of fact as to whether she sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, as set forth in Insurance Law § 5102(d). To establish that she sustained an injury that falls within either of these categories of serious injury, the plaintiff was required to show the duration of the alleged injury and the extent or degree of the limitations associated therewith (see Lee v Fischer, 244 AD2d 389; Beckett v Conte, 176 AD2d 774). While the plaintiff submitted evidence of a recent examination in which significant limitations in cervical and lumbar ranges of motion were noted by her treating osteopath, she failed to proffer competent medical evidence of any range-of-motion limitations in her spine that were contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731; Borgella v D & L Taxi Corp., 38 AD3d 701). Thus, in the absence of contemporaneous findings of range-of-motion limitations in her spine, the plaintiff was unable to establish the duration of the injury.

Moreover, neither the plaintiff nor her treating osteopath adequately explained the significant gap in treatment between May 2005, when, based on the plaintiff's assertions, she was last treated by a chiropractor and March 2007, when she was examined by her treating osteopath in direct response to the defendants' motion for summary judgment (see Siegel v Sumaliyev, 46 AD3d 666; Yudkovich v Boguslavsky, 11 AD3d 607). PRUDENTI, P.J., SKELOS, MILLER, COVELLO and McCARTHY, JJ., concur.

Kaminski v. Kawamoto



 

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


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated June 22, 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 motion to dismiss the complaint is granted.

Contrary to the Supreme Court's determination, the defendant met his prima facie burden on his motion for summary judgment 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; Malave v Basikov, 45 AD3d 539). In support of his motion, the defendant relied on the affirmed medical report of a neurologist, who examined the plaintiff. In the medical report, the defendant's neurologist, inter alia, noted numeric range of motion findings concerning the cervical and lumbar regions of the plaintiff's spine. In doing so, he compared those numeric findings to what is normal, thus establishing that the plaintiff had full range of motion in both regions of his spine. He concluded in his report that the plaintiff was not neurologically disabled. The plaintiff testified at his deposition that he missed only two weeks of work as a result of the subject accident.

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's treating physician failed to do so. Among other things, the plaintiff's physician failed to compare any of her findings on range of motion to what is normal (see Malave v Basikov, 45 AD3d 539). The plaintiff's affidavit did not raise a triable issue of fact as to whether he sustained a serious injury within the meaning of the no-fault statute as a result of the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Fisher v Williams, 289 AD2d 288, 289).

Finally, the plaintiff failed to submit 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 Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).

Accordingly, the Supreme Court should have granted the defendant's 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).
PRUDENTI, P.J., SKELOS, MILLER, COVELLO and McCARTHY, JJ., concur.

Kontomichalos v. County of Nassau

Sciretta & Venterina LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellants.
Manoussos & Associates, P.C., Garden City, N.Y. (Valeria Calloway of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants, County of Nassau, MTA-Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, and Gladstone A. Clarke, appeal (1) from an order of the Supreme Court, Nassau County (LaMarca, J.), entered May 4, 2005, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the plaintiff's cross motion, among other things, for summary judgment on the issue of serious injury and (2), as limited by their brief, from so much of an order of the same court dated January 3, 2006, as, upon, in effect, denying their motion, among other things, to quash three trial subpoenas, directed the defendant MTA-Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, to provide a complete copy of the employment file of the defendant Gladstone A. Clarke.

ORDERED that the appeal from so much of the order dated January 3, 2006, as directed the defendant MTA-Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, to provide a complete copy of the employment file of the defendant Gladstone A. Clarke is dismissed, on the ground that that part of that order was superseded and rendered academic by an order of the same court entered February 5, 2007, made upon reargument; and it is further,

ORDERED that the order entered May 4, 2005, is affirmed; and it is further,

ORDERED that the order dated January 3, 2006, is affirmed insofar as reviewed; and it is further,

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

The Supreme Court correctly determined that the defendants did not satisfy their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In support of their motion, the defendants relied on the affirmed medical reports of their examining orthopedic surgeon and neurologist, which described significant limitations in the range of motion in the plaintiff's cervical and lumbar spines (see Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472; Brown v Motor Veh. Acc. Indem. Corp., 33 AD3d 832). Under these circumstances, it is not necessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Moreover, on her cross motion the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of serious injury. In opposition, the defendants failed to raise a triable issue of fact. Therefore, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of serious injury.

The defendants' remaining contentions are without merit.
SPOLZINO, J.P., RITTER, COVELLO and DICKERSON, JJ., concur.

Wright v. AAA Constr. Servs., Inc.

                                                                                        

Purcell & Ingrao, P.C., Mineola, N.Y. (Terrance J. Ingrao and
Matthew M. Frank of counsel), for respondents AAA Construction
Services, Inc., and Natanahel Barreira.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated January 12, 2007, which granted the motion of the defendants AAA Construction Services, Inc., and Natanahel Barreira, and the separate motion of the defendants Jean Labranche and Jimward J. Labranche for summary judgment dismissing the complaint insofar as asserted against 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 costs, and the defendants' motions for summary judgment dismissing the complaint insofar as asserted against them are denied.

The Supreme Court erred in concluding that the defendants satisfied their respective prima facie burdens on their separate motions for summary judgment by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motions, the defendants relied on essentially the same submissions. Included within those submissions was the affirmed medical report of their examining orthopedic surgeon, who noted significant range of motion limitations in the plaintiff's left shoulder upon examination two years post-accident (see Zamaniyan v Vrabeck, 41 AD3d 472; Sullivan v Johnson, 40 AD3d 624; Smith v Delcore, 29 AD3d 890; Sano v Gorelik, 24 AD3d 747; Spuhler v Khan, 14 AD3d 693; Omar v Bello, 13 AD3d 430; Scotti v Boutureira, 8 AD3d 652). Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, and it is unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Zamaniyan v Vrabeck, 41 AD3d 472; Sullivan v Johnson, 40 AD3d 624; Coscia v 938 Trading Corp., 283 AD2d 538). SKELOS, J.P., SANTUCCI, COVELLO, McCARTHY and CHAMBERS, JJ., concur.

 

Wright v. Rodriguez

James J. Killerlane, P.C. (David Samel, New York, N.Y., of counsel), for appellants.
Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Julie M. Sherwood of counsel),                   for respondent William Rodriguez.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Murphy, J.), entered November 17, 2006, which granted the motion of the defendant William Rodriguez for summary judgment dismissing the complaint insofar as asserted against him on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) and, in effect, upon searching the record, awarded summary judgment dismissing the complaint insofar as asserted against the defendants Luis Ospina and White Plains Bus Co., Inc.

ORDERED that the order is affirmed, with costs.

The defendant William Rodriguez made a prima facie showing that neither plaintiff 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; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiffs failed to raise a triable issue of fact. As to the plaintiff Raquel Wright, neither she nor her examining physician adequately explained the lengthy gap in her treatment between October 14, 2004, and her most recent examination on February 23, 2006 (see Pommells v Perez, 4 NY3d 566, 574; Sibrizzi v Davis, 7 AD3d 691; cf. Black v Robinson, 305 AD2d 438, 440).

As to the plaintiff Hasan Precise, the affirmation of his treating physician submitted in opposition to the motion was not based on a recent examination, and thus the physician's projections of permanent limitations had no probative value (see Amato v Fast Repair, Inc., 42 AD3d 477; Ali v Mirshah, 41 AD3d 748; Elgendy v Nieradko, 307 AD2d 251). Moreover, the physician's opinion that Precise's injuries and limitations were caused by the subject accident was speculative in light of the fact that the physician failed to acknowledge in his affirmation that Precise was involved in a prior automobile accident in 2002 (see Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470).

The plaintiffs' remaining submissions were insufficient on their own to raise a triable issue of fact. The mere existence of a herniated or bulging disc, and even radiculopathy, 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 Patterson v NY Alarm Response Corp., 45 AD3d 656; Mejia v DeRose, 35 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509, 510; see also Furrs v Griffith, 43 AD3d 389, 390).
SPOLZINO, J.P., SANTUCCI, DILLON and BALKIN, JJ., concur.

 

Talcott  v. Zurenda

 

Calendar Date: January 10, 2008
Before: Cardona, P.J., Carpinello, Lahtinen, Kane and Kavanagh, JJ.


Litchfield Cavo, L.L.P., New York City (Edward Fogarty Jr. of counsel), for appellants.
Scott C. Gottlieb, Binghamton, for respondents.

MEMORANDUM AND ORDER


Cardona, P.J.

Appeal from a judgment of the Supreme Court (Relihan Jr., J.), entered November 27, 2006 in Broome County, upon a decision of the court in favor of plaintiffs.

Plaintiff Joseph W. Talcott (hereinafter plaintiff) and his wife, derivatively, commenced this action alleging that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) when the vehicle he was operating was hit multiple times from behind by a vehicle operated by defendant Anthony P. Zurenda and owned by defendant Transcontinental Refrigerated Lines, Inc. Liability was conceded and, following a nonjury trial, Supreme Court, in an October 2006 decision, found in favor of plaintiffs, concluding that "plaintiff sustained a serious injury within at least one (the 90/180 category) definition of that term in the Insurance Law" and awarded plaintiffs $324,500 plus interest. Defendants appeal.^[FN1]

Contrary to defendants' contention, we find no reason to disturb Supreme Court's finding that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The 90/180-day category of serious injury is defined by an inability of the plaintiff to perform "substantially all of the material acts which constitute such person's usual and customary daily activities" for not less than 90 out of the 180 days immediately following the accident (Insurance Law § 5102 [d]). In order to prevail under this category, plaintiffs were required to present objective medical evidence of an injury or impairment of a nonpermanent nature which would have caused the alleged limitations on plaintiff's daily activities (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 357 [2002]; Badger v Schinnerer, 301 AD2d 853, 854 [2003]; Sellitto v Casey, 268 AD2d 753, 755 [2000]). Furthermore, plaintiffs were also required to establish that plaintiff's usual activities were curtailed "to a great extent rather than some slight curtailment" (Licari v Elliott, 57 NY2d 230, 236 [1982]).

Here, plaintiffs presented the unrefuted testimony of Kamlish Desai, the orthopedic surgeon that plaintiff treated with since one week after the accident and who diagnosed him with "[c]hronic cervical, thoracic and lumbar syndrome," which was secondary to the motor vehicle accident. Desai testified that the repeated range of motion tests which he qualitatively measured over a two-year period demonstrated a marked restriction of flexion, extension and rotation compared with normal results. He stated that this was consistent not only with plaintiff's subjective complaints of pain, but also with the diagnosis of soft tissue injuries sustained in the accident and his continued objective observation of plaintiff over a long period of time. In addition, Desai indicated that, during the course of plaintiff's treatment, muscle palpations were detected and reflex tests of the upper extremities evidenced diminished reflexes.

With respect to plaintiff's asymptomatic degenerative condition, Desai opined that the trauma of the motor vehicle accident aggravated this condition and it was possible that plaintiff could have remained asymptomatic throughout his life but for the accident. To the extent that defendants' argue that plaintiffs failed to plead the aggravation of a preexisting condition, we note that this issue was raised by the parties in connection with defendants' motion for summary judgment and the case was tried on that theory. Accordingly, any variance between the pleadings and the proofs at trial are excused inasmuch as defendants cannot be said to have been misled or prejudiced by such evidence (see Anderson v Dainack, 39 AD3d 1065, 1068 [2007]; Hummel v Vicaretti, 152 AD2d 779, 780 [1989], lv dismissed 75 NY2d 809 [1990]).

Turning to the curtailment of plaintiff's usual activities, since the date of the accident plaintiff has been unable to return to his business of drilling wells, plumbing and installing heaters and air conditioners. The testimony established that the repetitive motions of pulling, twisting and lifting and other physical labor required by such employment increased plaintiff's pain and muscle spasms. In addition, plaintiff testified regarding the effect those restrictions had on preventing him from engaging in daily chores and activities that he regularly performed prior to the accident. Upon our review of the evidence, and giving due deference to Supreme Court's credibility assessments as the trier of fact (see Pedersen v Royce, 38 AD3d 1090, 1091-1092 [2007]), we conclude that the proof sufficiently supports the finding that plaintiff sustained a serious injury under the 90/180-day category of the Insurance Law.

We do find, however, some merit to defendants' challenge to the total loss of income awarded. In relying on defendants' calculations, Supreme Court used the gross income attributable to plaintiff approximately $310,000 without deducting any offset for the salary imputed to his wife's employment position with the business. In that regard, defendants provided the court with such a calculation totaling $180,942.92, which, upon our review, is the appropriate amount attributable to plaintiff's total gross income. In reducing that amount by 25% in accordance with the court's findings, we conclude that the net economic loss to plaintiff, in excess of basic economic loss, is $135,707.19. Contrary to defendants' contention on appeal, however, this amount is not subject to any further reduction to present value or offsets inasmuch as it does not exceed $250,000 (see CPLR 5041 [b], [e]; Sternfeld v Forcier, 248 AD2d 14, 18 [1998], appeal dismissed 92 NY2d 1045 [1999]).

We have reviewed defendants' remaining contentions, including his challenge to a nonjury trial, and find them to be without merit.

Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur.

ORDERED that the judgment is modified, on the facts, without costs, by reducing the amount awarded to plaintiff Joseph W. Talcott for net economic loss, in excess of basic economic loss, from $232,500 to $135,707.19, and, as so modified, affirmed.

Footnotes

Footnote 1:Contrary to plaintiffs' contention, the timely appeal from the final judgment brings up for review the October 2006 decision and order (see Matter of Specht, 265 AD2d 919 [1999]).

 

Casas v Montero

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto and Jason Levine of counsel), for appellant.
Valdebenito & Ardito, LLP, Garden City, N.Y. (Venessa D. Melly of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Hart, J.), entered May 24, 2007, which denied his 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The defendant met his prima facie burden of 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; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiffs failed to raise a triable issue of fact. The reports concerning the plaintiffs authored by Dr. Sean V. Cotter, one of the plaintiffs' treating chiropractors, were without any probative value in opposing the defendant's motion. Dr. Cotter attempted to affirm the contents of his reports concerning the plaintiffs pursuant to CPLR 2106, but since he is a chiropractor, he could not avail himself of that statute to affirm the contents of his reports (see CPLR 2106; Kunz v Gleeson, 9 AD3d 480; Santoro v Daniel, 276 AD2d 478). The reports of Dr. Joanne D. Manfredi, one of the plaintiffs' treating physicians, as well as the report of Dr. Osric S. King concerning the plaintiff Martha Casas, were also without probative value in opposing the defendant's motion since they were unaffirmed (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268).

The reports of Dr. Roxana Todirascu and Dr. Alonso V. Correa, both treating physicians of the plaintiffs, were properly affirmed but did not raise a triable issue of fact. Dr. Todirascu examined the plaintiffs on February 23, 2004. In her reports, while she noted "decreased" ranges of motion in Casas' cervical spine, lumbar spine, and right shoulder, and "decreased" ranges of motion in the plaintiff Hernan Carrasco's cervical spine, she failed to set forth the objective tests she performed to arrive at those conclusions (see Murray v Hartford, 23 AD3d 629; Nozine v Sav-On Car Rentals, 15 AD3d 555; Bailey v Ichtchenko, 11 AD3d 419; Kauderer v Penta, 261 AD2d 365). Moreover, it is evident that Dr. Todirascu relied on the unsworn reports of others in arriving at her conclusions concerning Casas (see Malave v Basikov, 45 AD3d 539; Govori v Agate Corp., 44 AD3d 821; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The reports of Dr. Correa are similarly flawed.

The affidavits of Dr. Frank Alamilla, one of the plaintiffs' treating chiropractors, were insufficient to raise a triable issue of fact since it is apparent that Dr. Alamilla relied on the unsworn reports of Dr. Cotter in coming to the conclusions contained in those affidavits (see Malave v Basikov, 45 AD3d 539; Govori v Agate Corp., 44 AD3d 821; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; Friedman v U-Haul Truck Rental, 216 AD2d at 267).

The only magnetic resonance imaging (hereinafter MRI) report that was properly relied upon by the plaintiffs in opposition to the defendant's motion was that of Casas' right shoulder. All of the other MRI reports and nerve conduction studies submitted by the plaintiffs were unaffirmed, and thus without any probative value in opposing the defendant's motion (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Pena, 43 AD3d 514). The MRI report of Casas' right shoulder was properly relied upon by the plaintiffs because the defendant's examining orthopedic surgeon set forth in detail the specific results of this report in his own report which was submitted in support of the defendant's motion (see Zarate v McDonald, 31 AD3d 632; Ayzen v Melendez, 299 AD2d 381). Nevertheless, 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 Shvartsman v Vildman,AD3d, 2008 NY Slip Op 00252 [2d Dept 2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656; Tobias v Chupenko, 41 AD3d 583, 584; Mejia v DeRose, 35 AD3d 407, 407-408).

The self-serving affidavits of the plaintiffs clearly were insufficient to raise a triable issue of fact on their own, as were the excerpts of the plaintiffs' testimony given at their respective depositions, since there was no objective medical evidence in support of those submissions (see Shvartsman v Vildman,AD3d, 2008 NY Slip Op 00252 [2d Dept 2008]; Tobias v Chupenko, 41 AD3d at 584).

The plaintiffs' admissible medical submissions were insufficient to establish that either plaintiff sustained a medically-determined injury of a nonpermanent nature which prevented them from performing their usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
MASTRO, J.P., FISHER, FLORIO, ANGIOLILLO and DICKERSON, JJ., concur.

 

 

Hoisington v Santos

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant.
Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered August 7, 2007, which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

The report of defendant's expert orthopedist addresses plaintiff's condition at the time of examination, more than three years after the accident, and therefore is insufficient to establish that plaintiff was not incapacitated from performing substantially all of her customary and daily activities for 90 of the 180 days immediately following the accident. However, the report establishes, prima facie, based on the results of numerous objective tests performed by the expert, that plaintiff's injuries have resolved (see Thompson v Ramnarine, 40 AD3d 360 [2007]). In opposition, the report of plaintiff's medical expert, who found, based on his own quantitative assessments, that plaintiff has limited ranges of motion in her cervical and lumbosacral spine, raises an issue of fact whether such limitations are permanent or significant (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

Rico v Figueroa

Rivkin Radler, LLP, Uniondale, N.Y. (Melissa M. Murphy of counsel), for appellant-respondent.
Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel),                                       for respondent-appellant.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated November 3, 2006, as denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff Antonio Rico did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the plaintiff Antonio Rico cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment on the issue of serious injury.

ORDERED that the order is reversed insofar as appealed from, on the law, and the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Antonio Rico did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

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

The defendant met her prima facie burden by showing that the plaintiff Antonio Rico (hereinafter Antonio) 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). Contrary to Antonio's contention, the papers he submitted in opposition to the defendant's motion were insufficient to raise a triable issue of fact as to whether he sustained a medically-determined injury which prevented him from performing substantially all of his usual and customary daily activities for 90 out of the first 180 days immediately following the subject accident (see Larkin v Goldstar Limo Corp., 46 AD3d 631; Borgella v D & L Taxi Corp., 38 AD3d 701; Whitfield-Forbes v Pazmino, 36 AD3d 901). The accident occurred on August 28, 2004. While Antonio's treating physician opined that he was unable to return to work full time until November 30, 2004, this was belied by Antonio's own deposition testimony in which he stated that he was able to return full time to work within 2 ½; months of the accident.

The Supreme Court properly denied Antonio's cross motion for summary judgment on the issue of serious injury. Since Antonio relied on essentially the same submissions in support of his cross motion as he did to oppose the defendant's motion, Antonio failed, as a matter of law, to establish that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident. Thus, Antonio failed to establish his prima facie entitlement to judgment as a matter of law, and the Supreme Court properly denied his cross motion, regardless of the sufficiency of the defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). MASTRO, J.P., FISHER, FLORIO, ANGIOLILLO and DICKERSON, JJ., concur.

Robinson v Vitek

McCabe & Mack LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (McGuirk, J.), entered January 22, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Louis Robinson did not sustain 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 the plaintiff Louis Robinson 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).
The plaintiffs' opposition papers were insufficient to raise a triable issue of fact.

Singh v. DiSalvo

Peter M. Zirbes & Assoc., P.C., Forest Hills, N.Y., for appellant.
Martyn, Toher & Martyn, Mineola, N.Y. (Brian L. Smith of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated February 1, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (cf. 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. Initially, the unaffirmed medical reports submitted by the plaintiff in opposition to the defendants' motion were without any probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Pena, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813, 814; Pagano v Kingsbury, 182 AD2d 268). The affidavit of the plaintiff's examining orthopedic surgeon, as well as his annexed report, failed to raise a triable issue of fact as to whether the plaintiff sustained a serious injury as a result of the subject accident. The surgeon admitted in his affidavit that he relied upon the unsworn reports of others in coming to his conclusions (see Malave v Basikov, 45 AD3d 539; Govori v Agate Corp., 44 AD3d 821; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Under the circumstances, 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 Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569). Moreover, the plaintiff failed to adequately explain the lengthy gap in his treatment evident in the record (see McNeil v Dixon, 9 AD3d 481).

 

Santana v Khan

Law Offices of Michael S. Lamonsoff, New York (Tara M. Ulezalka of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Michael I. Josephs of counsel),              for respondent.

Judgment, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 6, 2006, dismissing the complaint on behalf of plaintiff-appellant pursuant to an order that granted defendant's motion for summary judgment as against plaintiff-appellant for lack of a serious injury as required by Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant's medical evidence in support of the motion showed that appellant has normal range of motion in his cervical and lumbar spine and shoulders and that he did not otherwise sustain a serious injury as a result of the accident, and therefore satisfied defendant's initial burden on the motion "notwithstanding the existence of MRI reports indicating that [appellant] had herniated or bulging discs" (Style v Joseph, 32 AD3d 212, 214 [2006]). Summary judgment was properly granted as appellant's opposition failed to adduce evidence of a limitation of range based on objective medical findings made within a reasonable time after the accident (see Thompson v Abbasi, 15 AD3d 95, 98-99 [2005]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]). In addition, in response to defendant's showing of disc dessication and other degenerative findings in appellant's spinal MRIs, appellant's expert merely speculated that the injuries were causally related to the subject accident (see Pommells v Perez, 4 NY3d 566, 579-580 2005]; Diaz v Anasco, 38 AD3d 295, 296 [2007]).

Wu v Braga

Krause & Mauser, LLP, New York, N.Y. (Robert E. Burke of counsel), for appellants.
Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated November 20, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Jimmy Wu did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that the plaintiff Jimmy Wu (hereinafter the infant plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, they failed to raise a triable issue of fact as to whether the infant plaintiff was prevented from performing substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Duke v Saurelis, 41 AD3d 770, 771; Sainte-Aime v Ho, 274 AD2d 569, 570).
RIVERA, J.P., LIFSON, RITTER and CARNI, JJ., concur.

Matter of St. Paul – Travelers Insurance Co. and Kreibich-D’Angelo

Law Offices of Karen Dodson, White Plains (Andre
Del Re of counsel), for appellant.
Hanson & Fishbein, Albany (Paul G. Hanson of
counsel), for Progressive Northeastern Insurance Company,
respondent.

MEMORANDUM AND ORDER


Peters, J.

Appeal from an order of the Supreme Court (Meddaugh, J.), entered December 13, 2006 in Sullivan County, which denied petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

In July 2003, respondent Karen Kreibich-D'Angelo (hereinafter respondent) was allegedly injured when her vehicle was struck during a five-car rear-end collision. The day after the accident, Jonathan Damphier, a driver of one of the vehicles, contacted his insurer, respondent Progressive Northeastern Insurance Company, to inform it of the accident and provide a recorded statement.

According to an affidavit of service, on January 8, 2005, Damphier's mother was served at "47 McCleary St., Amsterdam, NY" with a copy of a summons and complaint in a personal injury action commenced by respondent against Damphier and others. In April 2005, Progressive was notified of that action by respondent's counsel.

Between April and May 2005, Progressive made several unsuccessful efforts to contact [*2]Damphier, ultimately disclaiming coverage in June 2005. Respondent thereafter requested supplemental uninsured/underinsured motorist (hereinafter SUM) arbitration with petitioner, alleging that the vehicle that struck her was uninsured. This CPLR article 75 proceeding sought to permanently stay that arbitration by contending that the disclaimer was invalid. After a hearing, Supreme Court denied the request for a permanent stay and this appeal followed.

Under the clear and unambiguous terms of the subject policy, Damphier was under an obligation to provide Progressive with prompt notice of the action and cooperate with it in its investigation of such matter. While we agree that Damphier's failure to cooperate (see City of New York v Continental Cas. Co., 27 AD3d 28, 31-33 [2005]) may well be the basis for Progressive's disclaimer of coverage, we do not agree that it has sustained the "heavy burden" set forth in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 [1967]).

Progressive was required to demonstrate that "it acted diligently in seeking to bring about the insured's co-operation; that the efforts employed by the insurer were reasonably calculated to obtain the insurer's co-operation; and that the attitude of the insured, after his co-operation was sought, was one of 'willful and avowed obstruction'" (id. at 168-169, quoting Coleman v New Amsterdam Cas. Co., 247 NY 271, 276 [1928] [citations omitted]; see Matter of Empire Mut. Ins. Co. [Stroud-Boston Old Colony Ins. Co.], 36 NY2d 719, 721 [1975]; Mt. Vernon Fire Ins. Co. v 170 E. 106th St. Realty Corp., 212 AD2d 419, 420 [1995], lv denied 86 NY2d 707 [1995]). Upon this sparse record, it appears that after Progressive became aware of the lawsuit in April 2005, it made efforts to locate Damphier through its database, directory assistance, Skiptrace and the information provided by him in his recorded statement. Between April and May 2005, Progressive placed six telephone calls to what it believed to be Damphier's residence and left voicemail messages on all but two occasions. A reservation of rights letter was then sent by certified and first class mail to Damphier at "47 McCleary Avenue." Subsequently, Progressive made contact with someone purporting to be Damphier's brother who suggested that it contact the Maritime School in Maryland. Once the number he provided proved to be incorrect, it appears that no further efforts were made. In May 2005, someone claiming to be Damphier's sister advised Progressive that Damphier was residing with his mother at the "McCreary Avenue" address. When Progressive finally went to that address, at a time not disclosed in the record, no one was home. A denial letter was sent by certified and first class mail to Damphier at the "McCleary Avenue" address in June 2005.

These efforts were insufficient under Thrasher. Progressive never explained the seeming confusion in the record between a McCleary Avenue address and a McCreary Avenue address, nor the discrepancy between McCleary Street and McCleary Avenue. Moreover, nothing in the record explains the failure to contact Damphier at his North Carolina address listed in the police accident report. Hence, with no evidence indicating that Damphier knew that Progressive was seeking his cooperation, and that he willfully refused to cooperate (see Thrasher v United States Liab. Ins. Co., 19 NY2d at 168-170; compare Matter of New S. Ins. Company/GMAC Ins. [Krum], 39 AD3d 1110, 1111-1112 [2007]), we cannot agree that his attitude was one of "'willful and avowed obstruction'" (Thrasher v United States Liab. Ins. Co., 19 NY2d at 168-169, quoting Coleman v New Amsterdam Cas. Co., 247 NY at 276; see Turkow v Erie Ins. Co., 20 AD3d 649, 651 [2005]). Accordingly, since Progressive knew of the lawsuit by April 2005 (see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 498 [2002]; New York Mut. Underwriters v Kaufman, 257 AD2d 850, 851 [1999]), we find its disclaimer invalid; "[m]ere inaction by the insured is not a sufficient basis" (City of New York v Continental Cas. Co., 27 AD3d at 32).

Mercure, J.P., Carpinello, Rose and Kavanagh, JJ., concur.

Kantrowitz v. Allstate Indemnity Company

Feldman, Rudy, Kirby, & Farquharson, P.C., Westbury, N.Y.
(Bruce W. Farquharson of counsel), for appellant.


DECISION & ORDER

In an action to recover under a homeowner's insurance policy, the defendant Allstate Insurance Company appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 20, 2007, as, upon granting its motion pursuant to CPLR 3211(a)(7) to dismiss the second, third, and fourth causes of action and the claim for attorneys' fees, costs, and disbursements, granted the plaintiff leave to replead those causes of action after the completion of disclosure.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs.

Upon granting the appellant's motion pursuant to CPLR 3211(a)(7) to dismiss the second, third, and fourth causes of action and the claim for attorneys' fees, costs, and disbursements, the court erred in including in its order a provision granting the plaintiff leave to replead those causes of action after the completion of disclosure. In opposition to the appellant's motion pursuant to CPLR 3211(a)(7), the plaintiff failed to establish that "facts essential to justify opposition may exist but [could not] then be stated" (CPLR 3211[d]).

With respect to so much of the second cause of action as sought to recover punitive damages against the appellant, a demand for punitive damages may not constitute a separate cause of action for pleading purposes (see Grazioli v Encompass Ins. Co., 40 AD3d 696; Crown Fire Supply Co. v Cronin, 306 AD2d 430, 431; Warhoftig v Allstate Ins. Co., 199 AD2d 258, 259). With respect to [*2]so much of the second cause of action as sought to recover attorneys' fees and the claim for attorneys' fees, costs, and disbursements in the ad damnum clause, the plaintiff may not recover the expenses incurred in bringing an affirmative action against an insurer to settle her rights under the policy (see New York Univ. v Cont'l Ins. Co., 87 NY2d 308, 324; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21; Grimsey v Lawyers Tit. Ins. Corp., 31 NY2d 953, 955). With respect to the third cause of action to recover a monetary penalty against the appellant pursuant to Insurance Law § 2601(c), "this State does not currently recognize a private cause of action under Insurance Law § 2601" (Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 614; see New York Univ. v Cont'l Ins. Co., 87 NY2d at 317-318; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842; Cicchetti v General Accident Ins. Co., 272 AD2d 500, 501). With respect to the fourth cause of action to recover treble damages against the appellant pursuant to General Business Law § 349, the plaintiff failed to allege that the defendants engaged in deceptive acts or practices that had a broad impact on consumers at large (see New York Univ. v Cont'l Ins. Co., 87 NY2d at 320; Zawahir v Berkshire Life Ins. Co., 22 AD3d at 842; Berardino v Ochlan, 2 AD3d 556, 557; Korn v First UNUM Life Ins. Co., 277 AD2d 355, 356).

Thus, no facts justifying opposition to the appellant's motion existed, and that motion should have been granted with prejudice.

Carlisle SoHo East Trust, v. Lexington Insurance Company

Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Louis H. Klein of counsel), for appellant.
Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 31, 2007, which denied defendant's motion for summary judgment declaring that it is not obligated to defend or indemnify plaintiff in the underlying personal injury action and granted plaintiff's cross motion for summary judgment to the extent of declaring that defendant is so obligated, unanimously affirmed, with costs.

Clear language in the relevant contract demonstrates the sub-subcontractor's agreement to be bound by the insurance requirements of the subcontract incorporated by reference (cf. Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243 [2001]). The incorporated subcontract, which required, inter alia, that plaintiff be named as an additional insured under the subcontractor's general liability and umbrella policies, expressly stated that all insurance required thereunder was binding on a sub-subcontractor retained by the subcontractor. Moreover, the sub-subcontractor, in agreeing to be bound by the subcontract, made specific revisions to the provisions setting forth the limits of umbrella coverage but made no change to the provision requiring that plaintiff be covered as an additional insured, thereby demonstrating a specific intent to be bound by the latter (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]). Accordingly, plaintiff was entitled to coverage under the terms of the policy issued by defendant to its named insured, the sub-subcontractor, which states that it includes as an additional insured "any person or entity that is required to be so named in a covered written contract with [the named insured]."

Braun v. One Beacon Insurance Company

Law Offices of Curtis, Vasile P.C., Merrick, N.Y. (Roy W. Vasile
and Patricia M. Mackreth of counsel), for respondent.


DECISION & ORDER

In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in an underlying action entitled Perl v Braun, pending in the Supreme Court, Kings County, under Index No. 33630/04, pursuant to a certain policy of insurance issued by the defendant to the plaintiff Isidore Braun, the plaintiffs appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated March 26, 2007, which granted the defendant's motion for summary judgment declaring that the policy of insurance does not cover the accident at issue in the underlying action and that it is not obligated to defend or indemnify the plaintiff Annette Braun in the underlying action.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for entry of a judgment declaring that the policy of insurance issued by the defendant to the plaintiff Isidore Braun does not cover the accident at issue in the underlying action entitled Perl v Braun, pending in the Supreme Court, Kings County, under Index No. 33630/04, and that the defendant is not obligated to defend or indemnify the plaintiff Annette Braun in the underlying action.

On May 28, 2004, the plaintiff Annette Braun allegedly struck and injured a pedestrian, Joseph Perl, while driving her 1987 Ford motor vehicle, which was covered by an insurance policy issued by American Home Insurance Company. The defendant, One Beacon Insurance Company, issued an insurance policy covering a 2000 Plymouth automobile to the plaintiff Isidore Braun, husband of Annette Braun. On July 7, 2004, the attorney for Perl notified the defendant that he was [*2]representing Perl in connection with his claim for the personal injuries he sustained in the accident, and requested coverage information. The defendant responded to Perl's attorney by letter dated July 12, 2004, in which it disclaimed coverage because its named insured, Isidore Braun, was not involved in the accident. That letter further stated that the applicable coverage was from a policy issued by American Home Insurance Company.

Thereafter, Perl rejected American Home Insurance Company's tender of the limits of its policy, and in August 2004, the defendant was notified that Perl was seeking excess coverage from it. By letter dated September 16, 2004, the defendant again disclaimed coverage, on the ground that the vehicle involved in the accident was not a "covered auto" as defined in the defendant's policy.

Subsequently, the plaintiffs commenced this action for a judgment declaring that the defendant was obligated to defend and indemnify them against Perl's claims pursuant to the insurance policy issued by the defendant to the plaintiff Isidore Braun. The Supreme Court granted the defendant's motion for summary judgment declaring that the policy of insurance does not cover the accident at issue in the underlying action and that the defendant is not obligated to defend or indemnify the plaintiff Annette Braun in the underlying action. We affirm.

The defendant's letter dated July 12, 2004, was a timely and effective disclaimer of coverage (see August v New York Cent. Mut. Fire Ins. Co., 98 NY2d 632; Waxman v Providence Washington Ins. Co., 207 AD2d 882). The second disclaimer letter dated September 16, 2004, while issued in response to Perl's claim for excess coverage, was based on the same policy exclusion and did not invalidate the first disclaimer letter dated July 12, 2004.

The plaintiffs' remaining contentions are without merit.

Since this is an action for a declaratory judgment, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that the policy of insurance issued by the defendant to the plaintiff Isidore Braun does not cover the accident at issue in the underlying action and that the defendant is not obligated to defend or indemnify the plaintiff Annette Braun in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
SKELOS, J.P., LIFSON, SANTUCCI and CARNI, JJ., concur.

Kennel Delites, Inc. v T.L.S. NYC Real Estate, LLC

Speyer & Perlberg, LLP, New York (J. Gregory Carlock of
counsel), for appellants.
William J. Unroch, New York, for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered on or about June 26, 2007, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment and denied defendant insurer's cross motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, plaintiff's motion denied, defendant insurer's cross motion granted only to the extent of dismissing that portion of plaintiff's claim for recovery under its policy for interior property damage and business income losses, and otherwise affirmed, without costs.

Defendant Charter Oak Fire Insurance Company, initially identified incorrectly as St. Paul Travelers Insurance Company, issued a policy to plaintiff with a limitation of coverage, known as a rain exclusion, which barred recovery for interior property damage and business income losses "caused by," among other things, rain. This rain exclusion applies to the loss at issue, namely, water damage from a rainstorm. Although plaintiff contends that the water damage to its interior was due to debris and mortar that fell from a neighboring building, which then clogged its roof drain, causing the rainwater to accumulate on its roof and later enter the building, the "efficient physical cause" was the rainwater itself (cf. Home Ins. Co. v American Ins. Co., 147 AD2d 353 [1989]). A reasonable business person would conclude in this case that the interior property was damaged by rainwater from the previous evening's storm, and would look no further for alternate causes (see Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008 [1992]). The claim as it might apply to roof damage should proceed.

Villaneuva v Preferred Mut. Ins. Co.

Calendar Date: January 14, 2008
Before: Mercure, J.P., Peters, Carpinello, Rose and Kavanagh, JJ.


Eisenberg & Kirsch, Saratoga Springs (Jeffrey D.
Wait of counsel), for appellant.
James F. Keefe, Cairo (Nicholas E. Tishler, Niskayuna,
of counsel), for respondents.

MEMORANDUM AND ORDER
Mercure, J.P.

Appeal from an order of the Supreme Court (Doyle, J.), entered December 26, 2006 in Greene County, which, among other things, granted plaintiffs' motion for partial summary judgment.

In 2002, plaintiffs purchased a summer home in the Town of Hunter, Greene County. Thereafter, they entered into a "ski season lease" renting the property for the months of November 2004 to April 2005 to two individuals who are not parties to this action. In January 2005, the property, which was covered by a homeowner's insurance policy issued by defendant, was destroyed by fire. Plaintiffs claimed, among other things, damage to their personal property in the amount of $121,500. Defendant, however, informed plaintiffs that it would pay only $2,500, the limitation on coverage for personal property on insured premises used for business purposes.

Plaintiffs then commenced this action, seeking to recover $121,500. Following joinder of issue, plaintiffs moved for summary judgment on the issue of liability and defendant cross-moved for summary judgment dismissing the complaint. Upon its finding that the policy language is ambiguous, Supreme Court granted plaintiffs' motion and denied defendant's cross motion. Defendant appeals and we now affirm.

It is well settled that an insurer seeking to invoke a policy exclusion "must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993]; accord Kramarik v Travelers, 25 AD3d 960, 962 [2006]). In determining whether a policy provision is ambiguous, the focus is "'on the reasonable expectations of the average insured upon reading the policy'" (Pepper v Allstate Ins. Co., 20 AD3d 633, 635 [2005], quoting Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326-327 [1996]; see State Farm Mut. Auto. Ins. Co. v Glinbizzi, 9 AD3d 756, 757 [2004]). Particularly where exclusionary language is at issue, any ambiguity in the policy is resolved in favor of the insured (see Pepper v Allstate Ins. Co., 20 AD3d at 635; Boggs v Commercial Mut. Ins. Co., 220 AD2d 973, 974 [1995]).

Plaintiffs' policy contained a $2,500 limit "[f]or loss to personal property used, in whole or in part, for 'business' purposes." As relevant here, the policy defined "business" as "includ[ing] the rental of property to others. It does not include the occasional rental for residential purposes of the part of the 'insured premises' normally occupied solely by 'your' household." Defendant argues that although the ski-season rental was the first time plaintiffs rented the property since purchasing it two years earlier, a rental for a period of five consecutive months is not an "occasional" rental within the meaning of the policy. Rather, defendant asserts, the term "occasional" which is not defined in the policy means "occurring . . . at irregular or infrequent intervals," and it is unreasonable for plaintiffs to expect that their homeowner's policy would provide coverage for a residence that they completely relinquished to renters for such an extended period of time.

In our view, while that construction is arguably reasonable, defendant has failed to establish that it is the only reasonable interpretation or that the provision necessarily applies in this particular case. We note that many of the courts that have interpreted the phrase "occasionally rented," "occasional rental" or "occasional basis" in this context have concluded that the phrase "refers to rentals occurring now and then, such as vacation rentals" (Hess v Liberty Mut. Ins. Co., 458 So 2d 71, 72 [Fla 1984] [emphasis added]; see Falzone v Florida Residential Prop. & Cas. Joint Underwriting Assn., 925 So 2d 398, 400 [Fla 2006]; Citizens Prop. Ins. Corp. v Wise, 926 So 2d 403, 404 [Fla 2006], review denied sub nom. Luker v Citizens Prop. Ins. Corp., 944 So 2d 987 [Fla 2006]; see also LeCompte v Lafayette Ins. Co., 813 So 2d 432, 434-436 [La 2001] [concluding "occasional" means, among other things, "[o]curring now and then" and the opposite of "continuous," such that the leasing of property for 12 months and then 10 months was occasional where attempts to sell intervened]). Indeed, the case primarily relied upon by defendant explains that "[t]he purpose behind the 'occasional' rental exception was to allow the insured to rent his or her residence while living elsewhere temporarily, but with the intention to return there to live" (State Farm Fire & Cas. Co. v Wonnell, 178 Ill App 3d 823, 826 [1989]; see also State Farm Fire & Cas. Co. v Piazza, 132 Wash App 329, 333 [2006], review denied 158 Wash 2d 1022 [2006] [explaining that an "occasional rental" is one in which "the circumstances of the rental [do] not negate the assumption that the homeowner is still the primary resident of the house, despite his or her temporary absence"]).^[FN1]

Plaintiffs' one-time rental of their summer home for a five-month period, with no definite plans to continue to rent the home but with the intent to return to use the summer home exclusively themselves, fits comfortably within these alternative definitions. The ski season lease was indisputably a vacation rental and defendant concedes that plaintiffs undoubtedly intended to use the house themselves again when it was not rented. Inasmuch as any ambiguity in this regard must be construed against the insurer and the "average" person could reasonably interpret the policy as providing coverage for the property despite the temporary vacation rental, Supreme Court properly granted plaintiffs' motion for partial summary judgment (see Pepper v Allstate Ins. Co., 20 AD3d at 635-636; State Farm Mut. Auto. Ins. Co. v Glinbizzi, 9 AD3d at 757-758; Boggs v Commercial Mut. Ins. Co., 220 AD2d at 975).

Defendant's remaining argument has been considered and found to be unsupported by the language of the exclusion.

Peters, Carpinello, Rose and Kavanagh, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1: The remaining case relied upon by defendant Gardner v State Farm Fire & Cas. Co. (2007 WL 1704664, 2007 US Dist LEXIS 42471) is distinguishable inasmuch as the rental herein did not last for the entire term of the annually renewable policy.         

 

 

Stephen L. Brenner, M.D., v. Hartford Life Ins. Co.

Quadrino Schwartz, Garden City (Harold J. Levy of counsel),
for appellant.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York
(Loren L. Pierce of the New Jersey Bar, admitted pro hac vice,
of counsel), for respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 17, 2007, which denied plaintiff insured's motion for summary judgment, upon a determination that New Jersey law governs the disability insurance policy issued to him by defendant, unanimously affirmed, with costs.

Under New York law, the incontestability provision contained in plaintiff's policy precludes the insurer from denying coverage beyond the two-year period (see New England Mut. Life Ins. Co. v Doe, 93 NY2d 122, 129 [1999]). However, under New Jersey law, it does not preclude denial of coverage on the ground that the insured concealed a known disability (see Paul Revere Life Ins. Co. v Haas, 137 NJ 190, 644 A2d 1098 [1994]). In view of the record evidence that plaintiff was aware of his pre-existing degenerative condition and its effect on his ability to practice orthopedic surgery long before he applied for the disability insurance policy, under New Jersey law, his motion for summary judgment declaring that he is totally disabled within the meaning of the policy, that defendant is obligated to pay continuing benefits to him under the policy, and that his obligation to pay premiums is waived during the period of his disability was properly denied.

The documentary evidence establishes conclusively that New Jersey has the most significant relationship with the insurance policy transaction (see Certain Underwriters at Lloyd's, London v Foster Wheeler Corp., 36 AD3d 17, 21 [2006], affd 9 NY3d 928 [2007]). New Jersey was the place of contracting, the place of performance, the location of the subject matter of the contract, and plaintiff's domicile. The insurance application was executed in Emerson, New Jersey. The subject matter of the insurance contract, plaintiff's orthopedic surgery practice, was located in New Jersey, insofar as plaintiff was employed full-time by Orthopedic Sports & Medicine Associates in Emerson, New Jersey, and annual premium notices were sent there. Plaintiff's tax returns, driver's license and voter registration card all reflect a New Jersey address. Plaintiff used his New Jersey address on his insurance application and in filing a claim and filling out continuation-of-claim forms, and he received disability checks at his New Jersey residence.

Plaintiff's affidavit regarding his alleged "contacts" with New York lacks documentary support. Plaintiff proffered no evidence that he is a New York resident or that the disability policy was delivered in New York or the application completed in New York. Indeed, as indicated, the application was executed in Emerson, New Jersey.

We reject plaintiff's contention that application of New Jersey law in this case contravenes New York public policy concerning the interpretation of incontestability

Alberta & Orient Glycol Co., Ltd. v Factory Mut. Ins. Co.

Mayer Brown LLP, New York (Scott A. Chesin and Robert J.
Ward of counsel), for appellant.
Clausen Miller P.C., New York (Barbara I. Michaelides of the
Illinois Bar, admitted pro hac vice, of counsel), for respondents.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered May 1, 2007, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the action for lack of personal jurisdiction as to defendants Great Lakes Reinsurance Company (UK) PLC, Commonwealth Insurance Company and ACE INA Insurance, and as against all defendants on forum non conveniens grounds, unanimously affirmed, with costs.

In this action for breach of contract based upon defendants' denial of coverage for plaintiff's losses under all-risk insurance policies covering plaintiff's chemical reactor facility in Alberta, Canada, the motion court properly determined that personal jurisdiction (CPLR 301) was lacking as to Great Lakes, Commonwealth and ACE INA, as they are not "engaged in such a continuous and systematic course of doing business' here that a finding of [their] presence' in this jurisdiction is warranted" (Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28, 33 [1990]). The record evidence also demonstrates that said companies' minimal contacts with New York are not sufficient to constitute the purposeful business activities required to subject them to this State's long-arm jurisdiction (see CPLR 302[a][1]; Professional Personnel Mgt. Corp. v Southwest Med. Assoc., 216 AD2d 958 [1995]).

Even if personal jurisdiction was not lacking, the court providently exercised its discretion in dismissing the action as against all defendants on forum non conveniens grounds (see CPLR 327[a]). The court considered the relevant factors, including the domicile of plaintiff and many of the defendants, the site of the loss, the location of records and files, the number of witnesses in Canada and in locations other than New York, and the fact that a related action is currently pending in the Canadian courts, and appropriately determined that Canada is the more appropriate forum (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]; see also Hbouss v Bank of Montreal, 23 AD3d 152 [2005]).

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