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Dear Coverage Pointers Subscribers:

 

            A special welcome to our 30+ new subscribers, many of whom were kind enough to sit through my presentations at the LIRB/PLRB in Boston and, after all that, were still interested in being added to the CP mailing list.  Happy reading!

 

            For our new subscribers, let me explain what you can expect.  This note is NOT - by itself -- the Coverage Pointers newsletter (although from my reader feedback, I dare say that many have more fun with this, the cover letter, than the issue).  The actual newsletter is always attached to the cover letter as a MS Word document (easier for most people to recirculate, cut-and-paste, etc.).  You'll see that each issue is organized in a similar format, with summaries at the top and then the full text of decisions linked below.

 

Sometimes (like this week) you will find another attachment, a "Special Edition," which provides in-depth analysis of some topic of interest.   CP will arrive in your mailbox on alternating Friday mornings (or, if properly inspired, on Thursday evenings).

 

            Back issues of CP can be found: http://www.hurwitzfine.com/newsletters.php.  Now, on to business.

 

How are these four related?

 

a.       Pez, (the rectangular candy)

b.      The State University of New York College of Optometry

c.       Famed pianist and conductor Ethel Leginska

d.      A tobacco truck driver

 

You mean, it isn't obvious?  See the discussion below entitled: Excuses, Excuses, Excuses.

 

A Noted Anniversary

 

            On September 12, 2001, I stood before the Insurance Law class at the Buffalo Law School contemplating the calamities that had occurred the day before.  It was early in the semester when most students, having never considered the importance of the asset of insurance in their everyday lives or the significant role that is played by insurance companies in rebuilding after loss, had not yet contemplated how experienced claims professionals would step into the breach to assist families in rebuilding their lives.  We talked about the importance of regulation to assure company stability and strength, about the role of reinsurance and the importance of reserves. 

 

             Surely, the following words ring true, as lessons from disasters such as Hurricane Katrina and 9/11:

 

The lesson that the insured will take most to heart is that insurance will not take care of itself, nor will his broker take care of it for him without some watching.  The insurance interests of a business are extremely important and should be looked after by a trained person.  The [disaster] has shown the need of popular education in insurance.

 

* * *

 

A few things remain to be said in conclusion.  In the first place, unquestionably, taken all in all, the [insurance] companies have done remarkably well.  An immense sum of money has been paid into the city, a far larger sum than companies have been called upon to pay at one time before.  In spite of the disaster, in spite of the nearness of time of [other disasters], the companies will finally have paid undoubtedly in the neighborhood of 80% of the amount of insurance involved.

 

The people [of that community] owe a particular debt of gratitude to the companies which made the fight for the old methods, for adjustment of claims on their merits and for payment of just claims in full.

 

Interestingly those words come neither from reports following recent hurricanes or terrorist attacks.  Today, April 18th is the 102nd anniversary of the San Francisco Earthquake.  Following that disaster, the San Francisco Chamber of Commerce asked Professor Albert W. Whitney of the University of California to prepare a report on the role played by fire insurance in rebuilding San Francisco.  Those are excerpts from his report.

 

As damaging as the earthquake and its aftershocks were, the fires that burned out of control afterward were much more destructive. It has been estimated that as much as 90% of the total destruction was a result from the subsequent fires caused by a number of sources, including dynamiting buildings to create firewalls and, some suggest, by policyholders (realizing that their policies excluded earthquake damage, but covered fire loss).The earthquake and fire that devastated San Francisco on April 18, 1906 was one of the most significant natural disasters in the United States, as well as in the history of insurance. It produced insured losses of $235 million at the time, equivalent to $4.9 billion in 2005 dollars.

 

Approaching Nirvana (Without Using my GPS Device)

 

There are some who love a perfect rose.  Others may enjoy a sunset over a sparkling blue sea.  Your desire may be for of a cup of cappuccino in a noisy Florence café.  But for me, ahh, for me, give me a complicated, finger-pointing battle between primary and excess policies over the priority of coverage, with construction contract provisions that do not match the policy language, drizzled with indemnity agreements and anti-subrogation possibilities, and I am surely at peace. 

 

The Bovis decision out of the First Department, reported in this issue of Coverage Pointers is just one of those cases, and, even better, correctly decided.  Pour three fingers of brandy, take out your sketch pad, draw out the parties and the relationships, and you too will be near nirvana.

 

To help you as you sift through the Bovis decision, keep this cheat sheet near:


Owner:                         Dormitory Authority

Construct. Manager:     Bovis (primary coverage will Illinois $1 million)

GC:                              Stonewall with a primary Liberty policy of $1 million a umbrella of $10 million with Westchester

Subcontractor:              J&A (primary coverage with QBE of $1 million followed by $5 million umbrella with United

Other parties:                Another prime contractor (SMI) and its subcontractor (AJ) not part of the action

 

Upcoming Educational Program:

Can the Commercial General Liability Policy Survive?
Recent Developments Affecting Coverage for
Bodily Injury Claims under the CGL Policy

New York State Bar Association Torts, Insurance and Compensation Law Section
 

                                                Tuesday, April 29, 2008          Albany
Tuesday, April 29, 2008          New York City
Thursday, May 1, 2008           Buffalo
Friday, May 2, 2008               Syracuse
Tuesday, May 6, 2008            Plainview, LI

 

            At the Buffalo location, our Audrey Seeley will be speaking on Commonly Litigated Exclusion in CGL Policies and I will be discussing the proposed legislation on Late Notice and Direct Action (and serving as Program Chair for that venue).  The ever-popular and talented, Elizabeth Fitzpatrick, from the Lewis, Johs, Avallone Avilies, LLP firm in Long Island is the state-wide coordinator of this excellent program.

                  

                You can register at the www.nysba.org  or call 1-800-582-2452.

 

Excuses, Excuses, Excuses - A Primer on Excuses

 

            Pez. The Optometry College.  Leginska.  The tobacco truck driver. We asked how they are related.  Stumped, you say? In our usual roundabout way, the attached article will explain how they all intermesh to assist claims professionals in conducting a better "late notice" investigation.  We do so, in light of a case reported in our April 4th version of Coverage Pointers., We reported on a March 25th Second Department decision in Surgical Sock Shop II, Inc. v. U.S. Underwriters Insurance Company.  Careful readers with good memories will recall that the case involved a pregnant woman who fell on a staircase leased to Surgical Sock Shop back on December 11, 2002.  Surgical was insured by U.S. Underwriters.

 

Surgical did not notify U.S. Underwriters until nine days after it received a letter of representation from the injured party's attorney with the carrier first receiving notice on March 19th of the following year. There was a factual dispute about what occurred at the accident scene.  The insured recalled that the woman who fell said she was "all right," drank a glass of water, refused an ambulance and walked away.  The injured party's recollection was slightly different. She claimed that after she fell she screamed "I am dying," "my baby is dead," and "help me," but that the women who came out of the plaintiff's premises did not want to touch her because of her condition, and that she was unable to move for 30 or 40 minutes. The matter was remanded for a hearing to resolve the factual dispute.

 

However, the legal questions raised by the case are worth considering.  What are the tests for evaluating an insured's failure to give notice of an accident about which it was aware?  How can a claims professional better investigate such a claim?  Surely, understanding the "acceptable" excuses for late notice and having a handy check list of topics about which to inquire may be helpful.

 

The attached article, entitled, of course, Excuses, Excuses, Excuses provides a somewhat spirited history of acceptable late notice excuses and concludes with a useful list of questions worth exploring during a late notice investigation.  A careful reading of the footnotes explains the eclectic relationship of the items discussed above.

 

Peiper Picked on Property

 

                An attalawyer goes to our own Steve Peiper, who was selected to head the First Party / Property Subcommittee of New York State Bar Association's Torts, Insurance and Compensation Law Section.  Great leadership!

 

Earl's Pearls

 

Earl Cantwell has a great piece in today's issue entitled: Toxic Torts: Be "Expert" In Your Discovery providing practical advice (as he always does) on systematic discovery protocols in toxic tort cases. 

 

From Audrey, Reigning Queen of No Fault:

 

I had the privilege of attending DRI's Insurance Coverage and Claims Institute last week in Chicago.  For those who have never attended I would highly recommend it.  There is an Insurance 101 course for those who are just getting into insurance coverage or simply would like a refresher.  This course provides the basics for property, CGL and auto coverage for adjusters and attorneys.  Those more experienced adjusters and attorneys would find the remainder of the seminar very useful as topics regarding more complex additional insured issues, bad faith, and drafting disclaimers and reservation of rights letter were covered.

 

I also have to thank Dan for being so accommodating on this trip.  When I travel, and Dan has found this out, the number one thing on my mind when I arrive somewhere is where I am going to eat my next meal.  Dan merely smiled at me this trip when I stepped off the plane around 11:00 a.m. and promptly stated to him "so where are we eating lunch?"  Dan let me pick where we ate lunch and it was great.  I passed on dessert to stop at a patisserie I found on the walk to the restaurant.  Dan, you have to admit that the patisserie was a good find!

 

This edition, congratulations goes out to our own Tasha Dandridge, Esq. who prevailed on a surgical arbitration.  The client and Tasha had good foresight to call the IME physician to testify who was found to be very persuasive.  As many know, it is very difficult to prevail on a denial for surgery based upon an IME.  Tasha overcame the obstacles and got a great result for the client.

 

We also have another arbitration decision regarding interest accrual.  The LMK decision was referenced and relied upon to make the determination.  I am interested to hear how the arbitrators are applying LMK.  Please send me an email advising who the arbitrator is and how they are apply LMK regarding attorney's fees and interest.  While the awards have a form on attorney's fees I have seen different wording on the award for attorney fees applying LMK.

 

Audrey Seeley

[email protected]

 

With all that out of the way, what do we offer you in this week's issue?  Here are the headlines:

 

·       How Many Occurrences?

·       Pecker Properly Picked.  Coverage Purists Rejoice.  There are Few Things as Pretty as a Well-Considered Allocation of Coverage Case.  Court Looks - as it Should - to Policy Language, Not Contracts, to Determine Order of Coverage in Construction Accident Lawsuit

·       Duty to Cooperate - When Will These Carriers Learn?  The Thrasher Test Rides Again

·       No Obligation to Defend Fraud and RICO Claims

·       Vehicle was Uninsured but Question as to Whether Claimant was Insured Under Policy

·       Question of Fact as to Whether Carrier Issued Policy with Certain Number so Unclear Whether Application to Stay Uninsured Motorist Arbitration was Timely

·       Court Adopts Hearsay Affidavit of Attorney as Fact; Thousands Flee

·       They Got the Lead Out, No Coverage Thereafter

 

STAROSIELEC'S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT

Mark Starosielec
[email protected]

 

·       Upon Further Review, Plaintiff-Security Guard's Injuries Were NOT Serious

·       Timing is Everything: Lack of Contemporaneous Medical Evidence Leads to SJ

·       SJ Granted: Complaint Dismissed as Plaintiff is "Completely Normal. . . In Every Respect"

·       Plaintiff's Doc's Failure to Address Subsequent MVA Leads to Summary Judgment

·       Conceding Defendant's Prima Facie Showing, Plaintiff Still Loses Appeal for Failure to Raise a Triable Issue of Fact

·       Prima Facie Burden NOT Satisfied as Plaintiff is Examined by D's Dr. Three Years Post-MVA 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

·       Testimony of IME Physician Assists in Upholding Surgical Denial

·       Large Lost Wages Denial Upheld on 30 Day Rule

·       How Do We Calculate Interest - Let Me Help You..

 

Litigation

·       Computerized, Affixed or Stamped Facsimiles of Physicians Signature Inadmissible.

·       Bench Trial Decision Upheld on Issue of Causal Relationship

 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

·       Summary Judgment Premature Where it is Unclear Whether Defendant is an Owner or a Tenant

·       Five Years Late and 2800 Miles Away: California Class Action Suit Bars Plaintiff's New York Claim

 

That's all for this issue and we'll start to look ahead to the next one.  In the meantime, stay well and remember that everyday we have in this world is surely a gift.

 

All the best.

 

Dan

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

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

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

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

Jody E. Briandi
Steven E. Peiper

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

APPELLATE TEAM
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

 

4/15/08            ExxonMobil Corporation v. Certain Underwriters at Lloyd's, London

Appellate Division, First Department

How Many Occurrences?
The CGL policy did not have specific “aggregation of claims” provisions identifying the operative incident under which occurrences should be counted.  Under New York law, the focus is on the conduct for which the insured is being charged.  In the absence of policy language that answers the question, the court applied the “unfortunate events” test that dates back to a 1959 Court of Appeals decision in Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am.,

 

In this case the manufacture, sale and installation of two defective products did not constitute a single occurrence.  Each installation led to damage to multiple claimants on different days.

 

We cannot tell from the decision how many occurrences had been found by the court below, the order for which was affirmed by this court.

 

4/10/08            Bovis Lend Lease LMB, Inc., v.  Great American Insurance Company

Appellate Division, First Department
Pecker Properly Picked.  Coverage Purists Rejoice.  There are Few Things as Pretty as a Well-Considered Allocation of Coverage Case.  Court Looks – as it Should – to Policy Language, Not Contracts, to Determine Order of Coverage in Construction Accident Lawsuit
Pecker Iron Work purists will join us as we dance in the streets.  In this case, the court determines priority of coverage by looking only at the policies.

 

Court determines that priority of coverage is determined NOT by the contracts between the parties, but by the apt words of the insurance agreements.  Here, the court found that the primary policies issued by subcontractors to construction manager (CM), would be first exhausted, and followed by primary policies issued to CM followed by excess policies that pro-rated.  Whether indemnity agreements would later allow recoupment by CM’s primary coverage was left for another day.

 

For those who love priority of coverage cases, and who doesn’t, we commend your attention to two previous issue of Coverage Pointers and our review of Harleysville v. Travelers (our successful defense of coverage purity) and Cheektowaga v. Burlington.  If you understand those – and embrace their holdings as we did – you will understand this one.  Both cases are cited in this decision.

 

In a nutshell, the Appellate Division held that it is the other insurance clauses that determine the priority of coverage among competing primary policies issued to a construction manager, general contractor and subcontractor, followed by umbrella policies (meant to be next in line because they are excess policies).  The umbrella policies with identical other insurance clauses pro-rate for the additional insured they insure. Language in construction contracts that try to prioritize coverage do not change the order of coverage unless the language in mirrored in the policies (which they were not in this case). 

 

Only after coverage is allocated among the policies, could indemnity agreement be used for recoupment by the parties, if the indemnity agreements so provide.

 

4/8/08              Matter of Countrywide v. Henderson
Appellate Division, Second Department

Duty to Cooperate – When Will These Carriers Learn?  The Thrasher Test Rides Again
If we have told you once, we have told you 1000 times:  There is a heavy burden of proving a lack of cooperation is on the insurer:. An insurer who seeks to disclaim coverage on the ground of non-cooperation is required to demonstrate that (1) it acted diligently in seeking to bring about the insured's cooperation, (2) its efforts were reasonably calculated to obtain the insured's cooperation, and (3) the attitude of the insured, after its cooperation was sought, was one of willful and avowed obstruction. See Thrasher v United States Liab. Ins. Co., 19 NY2d at 168-169).

 

Here, the sole evidence presented by the carrier seeking to establish lack of cooperation was an affidavit from an SIU investigator who had no personal knowledge of the efforts made to locate the insured.  The affidavit recited the apparent efforts of an unnamed investigator and attached copies of letters to the insured from a claims representative. The affidavit was based entirely upon hearsay evidence.  Not a chance of success of that record.

 

4/8/08              Eisenberg v. Anavil

Appellate Division, Second Department

No Obligation to Defend Fraud and RICO Claims

There was no obligation to defend insured who was sued for defrauding injured person out of property and for racketeering claims.

Editor’s Note:            Attalawyer, Rona.

 

4/8/08              Matter of Travelers v. Bynum
Appellate Division, Second Department
Vehicle was Uninsured but Question as to Whether Claimant was Insured Under Policy
In another case involving a stay of uninsured motorist benefits, Second Department determined that vehicle in which claimant was a passenger was, in fact, uninsured.  However, it was not clear from the record whether claimant was an insured under the policy entitled to benefits.  Matter was therefore sent back for hearing.

 

4/8/08              Matter of State Farm v. Williams

Appellate Division, Second Department
Question of Fact as to Whether Carrier Issued Policy with Certain Number so Unclear Whether Application to Stay Uninsured Motorist Arbitration was Timely
An application for UM benefits was made to an insurer who did not move to stay arbitration, as required, until after 20 days had expired.  Defense offered by carrier was that policy number on insurance card did not match any policy issued by insurer.  Appellate court sent matter back for factual determination on whether such a policy existed.

 

4/8/08              Matter of Progressive Northern Insurance Company v. Sachs
Appellate Division, Second Department

Court Adopts Hearsay Affidavit of Attorney as Fact; Thousands Flee
The insured did not notify Progressive until five years after the accident that he was making a
SUM (underinsured motorists) claim. That gave the insurer a right to disclaim coverage and stay arbitration. So far, so good.  However, in response, there was an uncontroverted affirmation of the insured’s attorney, to the effect that insured was unaware of the seriousness of his injuries until early in 2007.  The court found that this worthless, inadmissible hearsay affidavit was sufficient to show, as a matter of law, the existence of a valid excuse for that delay.

Editor’s Note:  Without an affidavit from the insured, NOTHING of evidential value was established.  Note to Progressive:  move to reargue!

 

4/8/08              Fire & Casualty Insurance Company of Connecticut v. Solomon

Appellate Division, Second Department

They Got the Lead Out, No Coverage Thereafter

Carrier was able to establish that its policy was in effect after the lead in the home was abated.  Accordingly, without any proof or claim that there would have been exposure to lead after the lead was removed, no coverage found to exist under policy.

 

STAROSIELEC’S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT

Mark Starosielec
[email protected]

 

4/17/08            Gorden v. Tibulcio

Appellate Division, First Department

Upon Further Review, Plaintiff-Security Guard’s Injuries Were NOT Serious

Albeit lengthy, the Appellate Division issued an opinion agreeing with the Supreme Court’s analysis. As such the lower court order, which granted defendants’ motion for summary judgment dismissing the complaint, was unanimously affirmed.

At his deposition, plaintiff testified that he could not return to work from the date of the accident (September 2002) until January 2003. Plaintiff further testified he had been involved in a prior auto accident in September 2000. Two IMEs were conducted on plaintiff. The first was performed by an orthopedist. He reviewed the X-ray, MRI and EMG reports taken at the time of the 2002 accident and performed various range-of-motion tests on plaintiff’s cervical and lumbar spine, knees and shoulders. The orthopedist found plaintiff’s ROM to be normal and concluded that cervical and lumbosacral strains, as well as the bilateral knee and shoulder contusions, were all “resolved.” The second IME, conducted by a neurologist, also found plaintiff’s ROM to be within normal ranges. The IAS court found that defendants established a prima facie showing, and that plaintiff failed to raise triable issues of fact.

In opposition, plaintiff had submitted four medical reports from his treating physicians, which included copies of the radiologic and MRI studies. In an affirmed follow-up report dated October 28, 2002, Dr. Jefferson Gabella compared ROM limitations to the normal range in a percentage format, and he diagnosed plaintiff as having lumbar sprain/strain, lumbar radiculopathy, cervical herniated/bulging discs, and internal derangement of the left shoulder and right knee. Plaintiff also submitted the affirmed report of his current treating physician, Dr. Louis C. Rose, who first examined plaintiff some 3 ½; years after the accident.

At the time of the incident, plaintiff’s physicians made three references to plaintiff’s ability to perform his usual and customary activities for 90 of the 180 days following the incident: Dr. Gabella's September 30, 2002 report stated he instructed plaintiff not to perform “heavy work” until told to do so by the doctor; Dr. Mohamed K. Nour’s October 15, 2002 report recommended that plaintiff “Avoid any strenuous activities as lifting, carrying, pushing or pulling heavy weights”; and Dr. Gabella's October 28, 2002 report concluded that “patient is somewhat limited in activities of daily living." These statements are too general in nature to raise an issue of fact.

Under the permanent consequential limitation and significant limitation categories of Insurance Law § 5102(d), plaintiff failed to submit medical proof containing “objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system” (John v Engel, 2 AD3d 1027, 1029 [2003]). Certainly, the reports of defendants’ examining doctors are detailed and contain such objective, quantitative evidence. While the unsworn MRI reports that plaintiff submitted were improperly rejected by the motion court the material contained therein was reviewed and cited by plaintiff’s physicians in their respective reports. Dr. Rose’s report cites an MRI taken of plaintiff’s knees revealing “intrasubstance tear and/or mixoid degeneration involving the posterior horn of both menisci.” Dr. Rose diagnosed “internal derangement . . . with possible medial meniscal tear.” However, he does not explain why he ruled out degenerative changes as the cause of the internal derangement. This failure rendered his opinion speculative that the derangement was caused by the accident.

4/15/08            Ali v. Khan

Appellate Division, First Department

Timing is Everything: Lack of Contemporaneous Medical Evidence Leads to SJ

Here, the Appellate Division reversed a lower court order which had denied defendants’ motion for summary judgment. On appeal, defendants met their burden of demonstrating that plaintiffs did not sustain serious injuries. In opposition, these plaintiffs failed to produce prima facie evidence in admissible form to support such claim. Neither of these plaintiffs presented competent medical evidence contemporaneous to the time of the accident showing the condition of her lumbar and cervical spine. Where the only objective evidence of limitation of motion is contained in a report of an orthopedist who examined the plaintiff several years after the accident, the finding is “too remote to raise an issue of fact as to whether the limitations were caused by the accident” (Lopez v Simpson, 39 AD3d 420, 421 [2007]).

 

4/11/08            Alteri v Benson

Appellate Division, Third Department

SJ Granted: Complaint Dismissed as Plaintiff is “Completely Normal. . . In Every Respect”

The Appellate Division affirmed the lower court order which granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff had commenced this action seeking damages for injuries she allegedly sustained to her neck, back and shoulder when the motor vehicle in which she was a passenger went off the road and flipped over.

In moving for summary judgment, defendant submitted, inter alia, plaintiff’s medical records and the report and affidavit of an orthopedic surgeon who conducted an IME. During plaintiff’s testimony, she detailed her numerous complaints since the accident, including neck, back, hip and shoulder pain. According to her, despite a substantial regimen of physical therapy, she experiences pain on a daily basis which limits her ability to perform various household and recreational activities. She acknowledged, however, that she has not missed one day of work as a nurse as a result of these injuries. According to the report and affidavit of defendant’s expert, his physical examination of plaintiff “was completely normal . . . in every respect.”

It was further established by this expert that an MRI of plaintiff’s lumbar spine revealed no fractures, sponylolisthesis or ligament injury. In short, this expert opined that none of plaintiff’s complaints correlate with any objective examination findings and, therefore, it was his opinion that she did not sustain a serious injury. Defendant’s submissions were sufficient to make a prima facie showing of entitlement to summary judgment. Finally, plaintiff failed in her shifted burden of raising a triable issue of fact.

4/10/08            Lunkins v Toure
Appellate Division, Department

Plaintiff’s Doc’s Failure to Address Subsequent MVA Leads to Summary Judgment

Plaintiff’s doctor’s failure to comment on a second motor vehicle accident doomed plaintiff’s chances of surviving summary judgment. As such, the lower court order, which had denied defendants’ motion for summary judgment dismissing the complaint, was unanimously reversed.

The affirmed reports of defendants’ orthopedist and neurologist, detailing the objective tests performed on plaintiff, finding that plaintiff had full range of motion in her cervical, thoracic and lumbar spine and shoulder, and concluding that she had recovered from the sprain injuries to her spine and shoulder established defendants’ prima facie entitlement to summary judgment.

Plaintiff’s opposition failed to raise a triable issue of fact. Her deposition testimony revealed that she was involved in a second motor vehicle accident more than one year after the subject accident, in which she injured her neck, back and shoulder. The conclusion of plaintiff’s treating orthopedist regarding the range of motion limitations found in plaintiff’s neck, back and right shoulder two years after the subject accident, failed to adequately address the possibility that plaintiff’s limitations were caused by the second accident.

 

4/8/08              Baksh v US Tow, Inc.

Appellate Division, Department

Conceding Defendant’s Prima Facie Showing, Plaintiff Still Loses Appeal for Failure to Raise a Triable Issue of Fact

While it may be debatable whether conceding defendant’s prima facie showing is commendable or foolish, it did not help the plaintiff Tyeisha Roker.  She was unsuccessful in her appeal of a lower court order which granted the motion of the defendants US Tow, Inc., and Colin E. Arthur for summary judgment and, in searching the record, awarded summary judgment dismissing the complaint insofar as asserted by her against the defendants MTA Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, and Judith A. Herrera on the same ground.

On appeal, Roker (hereinafter the appellant) did not challenge the Supreme Court’s determination that the defendants US Tow, Inc., and Colin E. Arthur made a prima facie showing that she did not sustain a serious injury. However, contrary to the appellant’s contention, her submissions in opposition to the motion were insufficient to raise a triable issue of fact. (The Appellate Division did not elaborate on how she failed to raise a triable issue of fact).

4/8/08              McGregor v Avellaneda

Appellate Division, Department

Prima Facie Burden NOT Satisfied as Plaintiff is Examined by D’s Dr. 3 Years Post-MVA

Here, the plaintiff successfully appealed a lower court order which inter alia granted the defendant’s motion and that branch of the third-party defendant’s motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

That order was reversed as the defendants and the third-party defendant (hereinafter the respondents) failed on their separate motions to satisfy their initial prima facie burdens. In support of their motions, the respondents relied on the affirmed medical report of the third-party defendant’s examining neurologist. In the report, which was based upon an examination that occurred more than three years after the subject accident, the neurologist noted significant range of motion limitations in the plaintiff’s left shoulder.

 

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

 

4/16/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

Testimony of IME Physician Assists in Upholding Surgical Denial

This arbitration was handled by Tasha Dandridge, Esq. at our firm.  A congratulation to her on this victory for the carrier as it is extremely difficult to prevail on surgical denials upstate.  The carrier should also be commended for having the foresight to insist the IME physician provide testimony at the arbitration.

 

The Applicant, medical provider, sought reimbursement for a November 2005, cervical spine surgery.  The insurer denied the claim based upon the independent medical examination conducted by Dr. Ismet Hallac.  Dr. Hallac’s report opined that the eligible injured person sustained cervical and lumbar spine strain superimposed over pre-existing osteoarthritis and disc degeneration.  Dr. Hallac further opined that continued analgesics and muscle relaxants were appropriate for the next 4-8 months.  Yet, the proposed cervical spine surgery was not warranted as it does not relate to the July 23, 2004, accident.

 

The Arbitrator determined that based upon Dr. Hallac’s report and his very persuasive testimony the Applicant failed to establish that the medical services were causally related to the accident.

 

4/15/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

Large Lost Wages Denial Upheld on 30 Day Rule

The Applicant, eligible injured person, sought $72,000.00 in lost wages as a result of an April 13, 2003, motor vehicle/house accident.  Nearly five months later the Applicant claimed psychological injury arising out of the motor vehicle striking his home on April 13, 2003.  The insurer contacted the Applicant two days after this incident to discuss the accident.  The insurer contented that the Applicant stated he did not sustain injury from the crash into his home and advised he would not make a claim for no-fault benefits.  The Applicant further indicated that he would report the property damage claim to his own homeowner’s carrier.  Then in September 2003, the Applicant retained counsel who sent the insurer a letter advising of the psychological injury.

 

The insurer issued a timely denial on two bases.  The first basis for the denial was that no-fault benefits were not available to claimants for zone of danger claims (Smith v. Chubb & Son, Inc. 528 NYS2d 236 (4th Dept. 1988).  The second basis for the denial was that the Applicant failed to provide written notice of the claim within 30 days from the date of the accident.

 

The Arbitrator rejected the zone of danger claim but accepted and upheld the 30 day claim.  The Arbitrator specifically stated that the Applicant failed to provide written notice to the insurer providing clear and reasonable justification for failing to comply with the 30 day timeframe.

 

4/14/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

How Do We Calculate Interest – Let Me Help You….

The parties to the arbitration were able to settle the claim but could not settle the dispute as to how interest was calculated, specifically when interest began to accrue.  The Arbitrator, apparently relying upon LMK (we note that a close review of that decision reveals that the interest discussion is dicta), stated that in the case of a timely denial interest will accrue from the date that the arbitration or litigation is filed.  Yet, for those claims that were untimely denied interest will accrue from the date that the claim is overdue.  In other words, 30 days after the insurer received proof of claim.

 

In this case while the Applicant failed to identify or even raise the issue, the Arbitrator pointed out that the insurer issued untimely denials for two claims.  Accordingly, interest began to accrue 30 days after the insurer received the claim for two of the claims and from the date of the arbitration filing on the remainder of the claims.

 

Litigation


4/8/08  Vista Surgical Supplies, Inc. v. Travelers Ins. Co.
Appellate Division, Second Department

Computerized, Affixed or Stamped Facsimiles of Physicians Signature Inadmissible.

The plaintiff’s motion to for summary judgment was properly granted as the defendant failed to submit its peer review report in admissible form under CPLR §2106.  The peer review report contained only a facsimile of the physician’s signature with no affirmation.

 

4/4/08              A&A Dental, P.C. a/a/o Mark Badger et. al. v. State Farm Ins. Co.

Appellate Term, Second Department

Bench Trial Decision Upheld on Issue of Causal Relationship

The parties submitted this case to a bench trial after stipulating that the plaintiff established it prima facie case, the defendant timely denied the claims without payment, and the sole issue at trial was whether the alleged injuries causally related to the accident.

 

The defendant called a biomechanic and the eligible injured person and the plaintiff called no witnesses.  The court awarded the plaintiff judgment and this appeal ensued.

 

The Appellate Court declined to disturb the lower court’s decision.  The Court held that a fair reading of the eligible injured person’s testimony concluded that he was wearing a seat belt that was not properly working.  The biomechanic’s testimony provided an opinion that only an unstrained passenger could make contact with the windshield.  Yet, the biomechanic’s admitted report revealed that the eligible injured person’s injuries were caused by an improper use of a seat belt.  The court held that the conflicting statements and conclusions drawn there from did not support the insurer’s contention that the conclusion could not have been reached under any fair interpretation of the evidence.

 

PEIPER ON PROPERTY

Steven E. Peiper

[email protected]

 

4/12/08            One Beacon Ins. Co. v French Institute Alliance Francais NYC

Appellate Division, First Department

Summary Judgment Premature Where it is Unclear Whether Defendant is an Owner or a Tenant

Plaintiff’s insured’s office was damaged by water infiltration which flowed from defendant’s office.  Plaintiff paid its insured’s claim for damages, and thereafter commenced the present subrogation action against defendant.  Defendant moved for summary judgment on the basis that the lease that plaintiff’s insured agreed to contained a provision which waived all subrogation rights. 

 

The Trial Court granted the motion, but the First Department disagreed and found a question of fact.  Specifically, defendant was both the owner of the premises, as well as a tenant on the floor above plaintiff’s insured.  The Court ruled that if the damage was caused by the negligence of the defendant (in its capacity as a tenant) the subrogation waiver would not apply.  Conversely, if defendant were negligent (in its capacity as the owner), the subrogation waiver might apply.  Absent further discovery, the First Department held that this answer could not be reached and remanded the case accordingly. 

 

4/08/08            Sparber v Manufacturer's Life Ins. Co.

Appellate Division, First Department

Five Years Late and 2800 Miles Away: California Class Action Suit Bars Plaintiff’s New York Claim

Plaintiff commenced the current action alleging carrier and carrier’s broker misrepresented the cost of premium payments for a policy of life insurance.  Apparently, plaintiff thought they would remain constant throughout the course of her lifespan.  The First Department held that because defendant had previously litigated this issue to its conclusion as part of a class action suit in California, the current matter was barred by res judicata principles.

 

EARL’S PEARLS

Earl K. Cantwell, II

[email protected]

 

Toxic Torts: Be “Expert” In Your Discovery

 

In most toxic tort and/or environmental litigation, expert witnesses play major roles in establishing the severity, duration, cause and appropriate abatement of the conditions through testimony regarding sampling analyses, industry practices, and other matters.  Air, “bulk” and “wipe” samples both inside and outside the premises become critical.  Be methodical and keep careful records of discovery and testing.  Note: be careful and perform non- or minimally invasive during any testing, discovery or inspections.  Conant v. State Farm Fire & Casualty Company, 2006 Mich. App. Lexis 1727 (2006) (Liability imposed for mold spore contamination of home caused by adjuster’s inspection which itself allegedly dislodged mold spores).

 

Obtain access to the site for inspection as soon as possible. Use your expert to map, plan, supervise and perform testing and inspection.  Carefully log, monitor and videotape the conditions, testing and inspection. Allow plaintiff’s attorney and expert the opportunity to be present and observe. If any items or pieces of material are removed for testing, obtain consent and document the location, removal and chain of custody.

 

Use the Bills of Particulars and interrogatories to itemize the alleged conditions, the particular damages, and plaintiff’s exact medical claims. Obtain all medical records of the plaintiffs, and as to general claims such as asthma, allergies, respiratory problems, rashes, etc., get complete historical medical records and histories.

 

Demand expert witness disclosures, and insist upon full disclosures under local rules. Fully depose plaintiff’s medical and scientific experts (if allowed) to examine and pin down such topics as:

 

a)                  plaintiff’s exact medical symptoms, and their onset, duration and severity;

b)                  the exact medical tests administered to the plaintiff and the findings;

c)                  the precise tests and sampling  methods used by plaintiff’s experts;

d)                  medical and scientific tests, texts, and reports regarded as authoritative by plaintiff’s doctors and experts;

e)                  when did plaintiff first experience or complain of any problems or symptoms;

f)                    determine whether there have been any major changes in plaintiff’s physical  condition, or that to the property; and

g)                  ascertain the training and background of plaintiff’s doctors and experts in toxic mold science and diagnosis.

 

In Brandt v. Rokeby Realty Co., 2004 Del. Super. Lexis 297 (2004), an attorney sued the landlord of his law office for health and emotional injuries caused by mold growing in the office. The court declined to allow an adverse inference instruction requested in defendant’s motion in limine. A ceiling tile removed from the plaintiff’s office was used to test for mold. Several years later, defendant requested to inspect the tile.  However, because “…no request was made to preserve or examine it or to monitor or safeguard any testing of the material….”, and because the defendant had knowledge of the removal of the tile, the court ruled against the motion in limine for a spoliation instruction against the plaintiff.

 

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

 

4/8/08              Sher v. Lafayette Insurance Company

Louisiana Supreme Court
Louisiana Supreme Court Defines "Flood" in the Wake of Hurricane Katrina
The Louisiana Supreme Court defined the breach of a levee and subsequent release of water as a “flood” in an insured’s policy. The Court held that the meaning of the word does not hinge upon the source of the release of water, albeit man-made or natural. Rather, the Court concluded that the definition is satisfied when a large amount of water covers an area that is usually dry.

Submitted by: Frank Ramos and Matthew Mazzarella (Clarke Silverglate & Campbell)

 

4/07/08            Auto-Owners Ins. Co. v. Young

Florida District Court of Appeals
Insured Denied Coverage Because He Failed To "Occupy" The Vehicle
A tow truck driver’s estate sought uninsured motorist benefits from the insurer of the tow truck. A tractor trailer struck the Driver as he stood approximately twenty-five feet from the vehicle. The insurance company denied coverage and the trial court granted an order of summary judgment in favor of the Driver’s estate. Florida's 1st District Court of Appeal overturned the trial court’s order of summary judgment asserting that the Driver engaged in a new activity distinct from exiting or using the tow truck.

Submitted by: Frank Ramos and Matthew Mazzarella (Clarke Silverglate & Campbell)

 

4/04/08            Allstate Floridian Ins. Co. v. Office of Insurance Regulation

Florida District Court of Appeals
State Insurance Regulators Acted Properly In Suspending Allstate’s License

A Florida appellate court has ruled that state insurance regulators acted within their authority in issuing an Immediate Final Order suspending Allstate’s license to transact new business in Florida owing to the insurer’s failure to comply with discovery subpoenas seeking documents concerning Allstate’s relationship with various risk modeling companies, insurance rating organizations and trade associations and its failure to produce knowledgeable witnesses on these topics at a January 2008 hearing. The court took note of the fact that, while objecting to the breadth of the regulators’ discovery requests, Allstate had not sought extra time to respond and had, in fact, incurred millions of dollars fines in a similar case in Missouri rather than turn over some of these documents.

Submitted by: Michael F. Aylward (Morrison Mahoney LLP)

 

REPORTED DECISIONS

 

Fire & Casualty Insurance Company of Connecticut v. Solomon


Diamond and Diamond LLC, New York (Stuart Diamond of
counsel), for appellants.
Schindel, Farman, Lipsius, Gardner & Rabinovich LLP, New
York (David BenHaim of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 22, 2007, granting plaintiff insurer's motion for summary judgment and declaring in its favor that it is not obligated to defend or indemnify defendants-appellants property owner and management company in an underlying action for lead paint injuries, unanimously affirmed, without costs.

Plaintiff satisfied its initial burden on the motion with evidence adduced in disclosure proceedings in the underlying action demonstrating that the infants' lead injuries were sustained before the subject policy went into effect. Such evidence includes the mother's deposition testimony that there were no problems with paint in the apartment following abatement; the subject policy showing commencement of coverage on December 10, 2002; a letter dated December 12, 2002 from the Department of Health to appellants stating that based on an inspection conducted on July 22, 2002, the lead condition in the apartment had been corrected; and medical records showing that on January 29, 2003, one child's lead level was normal and the other child's level only very slightly elevated at 11 (the parties agree that 10 and under is normal; 10-19 is moderate; 20-44 is high; and 45-69 is urgent). We reject appellants' argument that this January 2003 reading of 11 raises an issue of fact as to whether the child was still being exposed to lead in the apartment after the policy went into effect in December 2002, and that plaintiff's motion papers should have included a medical expert's affidavit explaining why the child's level had not dropped down into an undeniably normal range. As the motion court emphasized, there is no evidence that any lead ingestion could have occurred in the apartment after the July 2002 inspection, and appellants' suggestion to the contrary is mere speculation. We have considered appellants' other arguments and find them unavailing.

Bovis Lend Lease LMB, Inc., v.  Great American Insurance Company

Cross-appeals from an order of the Supreme Court, New York County (Carol Edmead, J.), entered April 6, 2006, which granted summary judgment motions by plaintiffs and Liberty, and denied a summary judgment motion by United, to the extent of declaring, in effect, that the order of the obligation to defend and indemnify Bovis, DASNY, NYC, and Stonewall in a certain underlying wrongful death action is (1) QBE, up to the $1 million limit of its coverage, (2) upon exhaustion of QBE's coverage, United, up to the $4 million limit of its coverage, (3) upon exhaustion of QBE's and United's coverage, Liberty, up to the $1 million of its coverage, and (4) upon exhaustion of QBE's, United's and Liberty's coverage, Westchester, up to the $10 million limit of its liability.

FRIEDMAN, J.

This appeal concerns a dispute among several insurance companies over the priority of coverage for the construction manager and owner of a construction project in a wrongful death action. Based on an examination of the terms and role of each insurance policy at issue, we hold that the additional insured coverage afforded the construction manager and owner by the umbrella liability policy of the subcontractor that employed the decedent is excess to the construction manager's and owner's coverage under the construction manager's own primary insurance. We also hold, based on the same examination, that the construction manager's and owner's additional insured coverage under the subcontractor's umbrella policy is excess to their coverage under the primary insurance maintained by the general contractor that retained the subcontractor. We reach these conclusions notwithstanding that the insurance provisions of the underlying subcontract apparently required the subcontractor to make all of the insurance it provided to the construction manager and owner applicable on a primary basis, without contribution by the construction manager's and owner's own insurance. Our reasoning is that, under applicable precedent, an umbrella or excess liability insurance policy should be treated as just that, and not as a second layer of primary coverage, unless the policy's own terms plainly provide for a different result. To hold otherwise would, we believe, merely sow uncertainty in the insurance market.

This matter arises from a fatal accident that occurred on June 10, 2003, in the course of the construction of the Bronx Criminal Court Complex, a project for which Bovis Lend Lease LMB, Inc. (Bovis) was retained as construction manager by the governmental owner, the Dormitory Authority of the State of New York (DASNY). The decedent, Joao Goncalves, was an employee of J & A Concrete Corp. (J & A), a subcontractor of the project's general construction contractor, Stonewall Contracting Corp. (Stonewall). The decedent allegedly fell down an elevator shaft on which work had been performed by A.J. McNulty & Co., Inc. (A.J. McNulty), a subcontractor of SMI-Owen Steel Company, Inc. (SMI-Owen), the structural steel and stair contractor for the project. Stonewall and SMI-Owen each contracted separately with DASNY, and were not in contractual privity with each other.[FN1]

The decedent's estate has commenced a wrongful death action in Bronx County Supreme Court against, among others, DASNY, the City of New York (NYC), Bovis, and Stonewall (Maria Goncalves, as Administrator, etc., et al. v The Dormitory Authority of the State of New York, et al., Index No. 21460/04 [the Goncalves action]). The instant action has been brought by plaintiffs herein - Bovis, DASNY, NYC, and Bovis's commercial general liability (CGL) insurance carrier, Illinois National Insurance Company (Illinois) - to obtain a determination concerning the entitlement of Bovis, DASNY and NYC (collectively, the Bovis plaintiffs) to a defense and indemnification in the Goncalves action from the insurers of Stonewall, J & A and A.J. McNulty. The following insurers (with relevant policy limits noted) have been named as direct defendants in this action: (1) QBE Insurance Corporation (QBE), J & A's primary CGL carrier (policy limit of $1 million per occurrence); (2) United National Insurance Corp. (United), J & A's commercial umbrella liability carrier (policy limit of $5 million per occurrence, in excess of primary coverage); (3) Liberty Insurance Underwriters, Inc. (Liberty), Stonewall's primary CGL carrier (policy limit of $1 million per occurrence); (4) Westchester Fire Insurance Company (Westchester), Stonewall's commercial umbrella liability carrier (policy limit of $10 million per occurrence, in excess of primary coverage); and (5) Great American E & S Insurance Company, sued herein as Great American Insurance Company (Great American), A.J. McNulty's primary CGL carrier (policy limit of $1 million per occurrence). The relevant limit of the Bovis plaintiffs' primary CGL coverage under the policy issued to Bovis by plaintiff Illinois (which covers DASNY and NYC as additional insureds) is $1 million per occurrence.[FN2]

After the commencement of this action, QBE agreed to defend and indemnify the Bovis plaintiffs as additional insureds under J & A's primary policy, up to that policy's $1 million per-occurrence limit. The Bovis plaintiffs' status as additional insureds under the United, Liberty and Westchester policies is also undisputed [FN3]. Still in dispute, however, is what the priority of coverage will be, upon exhaustion of the QBE policy, among the remaining defendants, as well as plaintiff insurer Illinois.

On opposing motions for summary judgment by plaintiffs, United and Liberty, Supreme Court declared, in substance, that the order of coverage for the Bovis plaintiffs, after exhaustion of the QBE policy, would be United first, Liberty second, Westchester third, and Illinois fourth. On United's appeal and Westchester's cross appeal, we modify to declare that the order of coverage for the Bovis plaintiffs after QBE is Liberty first, Illinois second, and, third, United and Westchester, sharing ratably.

Supreme Court apparently adopted the view of plaintiffs and Liberty that the priority of coverage among the subject policies is dictated by the terms of the underlying trade contracts (i.e., the DASNY/Stonewall contract and the Stonewall/J & A subcontract), even if an examination of the terms of the various insurance policies would yield a different result. The trade contracts required Stonewall and J & A to obtain $5 million of "additional insured" coverage for the Bovis plaintiffs that would be "primary to any other insurance maintained by the [Bovis plaintiffs]," and to which the Bovis plaintiffs' own insurance would be excess [FN4]. Accordingly, Supreme Court deemed the Bovis plaintiffs' additional insured coverage under J & A's United umbrella policy to be triggered immediately upon exhaustion of the $1 million limit of J & A's underlying QBE policy, before the coverage under either of Stonewall's policies or under Bovis's own policy. This is a mistaken approach.

An insurance policy is a contract between the insurer and the insured. Thus, the extent of coverage (including a given policy's priority vis-a-vis other policies) is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage. As the Court of Appeals has stated, New York law "recognize[s] the right of each insurer to rely upon the terms of its own contract with its insured" (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 373 [1985]; see also United States Liability Ins. Co. v Mountain Valley Indem. Co., 371 F Supp 2d 554, 558 [SD NY 2005] ["insurance policy provisions take precedence over conflicting provisions found in contracts between insureds"]; Travelers Indem. Co. v American & Foreign Ins. Co., 286 AD2d 626 [2001] ["it is the policy provisions that control (priority of coverage) and not the provisions of the subcontract" between the insureds]; United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d 1163, 1165 [1994] ["the terms of both policies clearly and unequivocally provide for equal contribution towards the defense and indemnification of (the additional insured), and we are not at liberty to rewrite them to conform to the terms of a contract to which the insurance companies were not parties"]).

Contrary to the contentions of plaintiffs and Liberty, Pecker Iron Works of N.Y. v Traveler's Ins. Co. (99 NY2d 391 [2003]) is not to the contrary. We recognize, of course, that Pecker looked to the underlying subcontract's insurance procurement provisions to determine whether the general contractor's coverage as an additional insured under the subcontractor's policy was primary or excess. The critical point, however, is that the Court of Appeals looked to the subcontract because the insurance policy itself expressly provided that the terms of the subcontract would determine whether the additional insured coverage afforded was primary or excess (see id. at 393 [subcontractor's policy provided that coverage for additional insureds would be excess unless the subcontractor "agreed in a written contract for this insurance to apply on a primary or contributory basis"]). The controlling nature of the policy terms is made explicit by one of Pecker's concluding sentences: "Pursuant to the policy provision at issue, Travelers agreed to provide primary insurance to any party with whom [the subcontractor] had contracted in writing for insurance to apply on a primary basis" (id. at 394 [emphasis added]).

In view of the foregoing, J & A's subcontract is determinative of the priority of the coverage afforded to additional insureds under J & A's United umbrella policy only if the United policy, like the policy of the Pecker subcontractor, contains a provision defining the priority of the coverage provided to additional insureds by reference to the requirements of the subcontract. Accordingly, we turn to the United policy to see whether it contains any such provision.

The United policy is denominated a "Commercial Umbrella Liability Policy." The policy requires United to "pay on behalf of the insured that portion of the ultimate net loss' in excess of the retained limit' because of bodily injury' or property damage' to which this insurance applies." As pertinent here, the United policy (paragraph 20 of "SECTION VI - DEFINITIONS") defines the term "retained limit" to mean the amount applicable to the claim from the "[u]nderlying insurance" (in this case, the primary CGL policy issued to J & A by QBE) and "[o]ther collectible primary insurance."

The United policy further provides (under paragraph 2 of "SECTION III - WHO IS AN INSURED") that "each of the following is also an insured":

"e.Any person or organization qualifying as an insured under any policy of underlying insurance'. Coverage afforded such insureds under this policy applies only to injury or damage:

(1)Which is covered by this policy; and

(2)Which is covered by the "underlying insurance" or would be covered but for the exhaustion of such policy's limits of insurance.

This policy does not afford such person or organization limits of insurance in excess of the lesser of:

(1)The minimum limit of insurance you agreed to provide; or

(2)The limit of insurance under this policy.

"f.Any person or organization for whom you have agreed in writing prior to any occurrence' or offense' to provide insurance such as is afforded by this policy, but only with respect to operations performed by you or on your behalf, or facilities owned or used by you. This policy does not afford such person or organization limits of insurance in excess of the lesser of:

(1)The minimum limit of insurance you agreed to provide; or

(2)The limit of insurance under this policy."

The United policy's "Other Insurance" clause (paragraph 10 of "SECTION V - CONDITIONS") provides in pertinent part:

"If other valid and collectible insurance is available to the insured for ultimate net loss' we cover under this policy, our obligations under this policy are limited as follows:

a.As this insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis, except such insurance as is specifically purchased to apply in excess of this policy's Limit of Insurance, we will pay only our share of the amount of ultimate net loss', if any, that exceeds the sum of:

(1)The total amount that all such other insurance would pay for the loss in the absence of this insurance; and

(2)The total of all deductible and self-insured amounts under this or any other insurance."

Nowhere do the foregoing provisions of the United policy define the priority of the coverage afforded to additional insureds by reference to the requirements of the underlying trade contract requiring J & A (the named insured) to provide such insurance [FN5]. Accordingly, we must review and consider all of the relevant policies at issue to determine the priority of coverage among them (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 716 [2007]). This determination "turns on consideration of the purpose each policy was intended to serve as evidenced by both its stated coverage and the premium paid for it, as well as upon the wording of its provision concerning excess insurance" (LiMauro, 65 NY2d at 374 [citations omitted]).

An umbrella insurance policy provides the insured with "final tier . . . coverage at a premium reduced to reflect the lesser risk to the insurer" (LiMauro, 65 NY2d at 375). "[U]mbrella coverages . . . are regarded as true excess over and above any type of primary coverage, excess provisions arising in regular policies in any manner, or escape clauses" (8A Appleman on Insurance, § 4909.85, at 453-454 [1981] [footnotes omitted]; see also 15 Couch on Insurance 3d, § 220:41; see also United States Fire Ins. Co. v CNA, 300 AD2d 1054 [2002]; Travelers Indem. Co. v American & Foreign Ins. Co., 286 AD2d at 626). Thus, for example, in the context of automobile insurance, an umbrella policy is held to be excess to a primary policy covering the driver or lessee when operating a vehicle not owned by the insured, even if the primary policy states that its coverage for nonowned vehicles is excess (see Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 372 [1998]; LiMauro, 65 NY2d at 371; Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651 [1980]; Liberty Mut. Ins. Co. v Hartford Ins. Co. of Midwest, 25 AD3d 658, 662-663 [2006]; Northbrook Excess & Surplus Ins. Co. v Chubb Group of Ins. Cos., 113 AD2d 319 [1985], affd 67 NY2d 1015 [1986]). The intent to provide a final tier of coverage may be made explicit by an "Other Insurance" clause providing that coverage under the umbrella policy will be "in excess of all other coverage available, including excess coverage" (Lumbermens, 51 NY2d at 656).

Here, as previously noted, J & A's United policy is denominated a "Commercial Umbrella Liability Policy," and its coverage is limited to losses in excess of the coverage afforded by the "[u]nderlying insurance" (the QBE policy) or "[o]ther collectible primary insurance." Further, the United policy's "Other Insurance" clause specifically provides that United's coverage "is excess over any other insurance, whether primary, excess, contingent or on any other basis, except such insurance as is specifically purchased to apply in excess of this policy's Limit of Insurance" (emphasis added), thereby "negat[ing] any intention to contribute with other policies except such as were purchased as excess over its excess insurance" (LiMauro, 65 NY2d at 377). Moreover, the policy premium ($79,835) was quite modest in comparison with the aggregate amount of potential coverage purchased ($10 million)[FN6]. By comparison, the premium for J & A's primary CGL policy from QBE, with an aggregate policy limit of $3 million ($2 million "General Aggregate Limit" plus $1 million "Products/Completed Operations Aggregate Limit"), was $240,414, about three times the amount of the United premium. Thus, the United policy plainly was intended to constitute the final tier of insurance for any liability it would cover, but for any insurance specifically purchased to apply in excess of its limits.

We now turn to the Liberty policy, the primary CGL policy of Stonewall, the general construction contractor that subcontracted the project's concrete work to J & A. The Liberty policy's "Other Insurance" clause provides, in pertinent part, that the insurance afforded by the policy is

"excess over . . . [a]ny other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement" (emphasis added).


Although the Bovis plaintiffs are additional insureds under the United policy, the United policy is not primary insurance and, therefore, it is not subordinated to the Liberty policy by the latter's above-quoted "Other Insurance" clause. Indeed, Liberty does not contend otherwise.

In arguing that its coverage should be deemed excess to the coverage under the United policy, Liberty relies, not on its policy's "Other Insurance" clause, but on a "Special Conditions for Subcontractors Endorsement" (the Subcontractors Endorsement) attached to the policy. That endorsement amends the conditions of the Liberty policy to include, inter alia, the following provision:

"Commercial General Liability coverage maintained by subcontractors [of Stonewall] shall be primary and this policy shall be excess of limits of liability of such insurance, not withstanding [sic] the language of the Other Insurance provisions of this policy."


United and Liberty dispute whether the term "Commercial General Liability coverage maintained by subcontractors" in the Subcontractors Endorsement can be construed to refer to the "Commercial Umbrella Liability Policy" United issued to J & A. We agree with United that the term should not be so construed.

As exemplified by the LiMauro decision, the Court of Appeals' approach to the interpretation of excess clauses is to construe such a clause in a policy otherwise providing primary coverage as addressed to insurance on the same level, not to higher levels of insurance, in order to avoid "distort[ing] the meaning of the terms of the policies involved" (65 NY2d at 374, citing Lumbermens, 51 NY2d at 655). Here, to reiterate, it is undisputed that the Liberty policy is not a true excess policy, but a primary policy that, under certain circumstances, purports to shift losses to other available insurance. Further, the Subcontractors Endorsement to the policy does not expressly refer to excess and umbrella coverage. We therefore construe the term "Commercial General Liability coverage maintained by subcontractors" in the Subcontractors Endorsement to refer to the primary CGL policies of Stonewall's subcontractors, not to a true excess policy that, like the United umbrella policy, happens to cover excess CGL risks.[FN7]

We note that the Liberty policy's status as primary insurance is underscored by the fact that the premium Stonewall paid for it ($225,000 for $10 million "Policy Aggregate" limit) was almost three times the amount of the premium J & A paid for the same aggregate coverage under the United umbrella policy ($79,835 for $10 million aggregate coverage). It is also noteworthy that the Liberty policy incorporates a "Primary Insurance Clause Endorsement," which provides:

"To the extent that this insurance is afforded to any additional insured under the policy, such insurance shall apply as primary and not contributing with any insurance carried by such additional insured, as required by written contract."


No such endorsement is attached to the United policy.

Our holding that subcontractor J & A's umbrella policy is excess to general contractor Stonewall's primary policy is consistent with the Fourth Department's decision in Cheektowaga Cent. School Dist. v Burlington Ins. Co. (32 AD3d 1265 [2006]). In Cheektowaga, the issue was the priority of coverage for the plaintiffs (the owner and the construction manager of a project) between the construction manager's primary policy (from Zurich) and the roofing contractor's umbrella policy (from Diamond State). The owner and construction manager were covered by the Diamond State policy as additional insureds (id. at 1266). As summarized by the court, the Zurich policy, although generally primary, provided that its coverage would be excess if

"there was other primary insurance available for which plaintiffs were added as additional insureds by the attachment of an endorsement or there was other insurance, whether primary or excess, in which a named insured of the Zurich policy was named as an additional insured" (id. at 1267 [emphasis added]).


Notwithstanding this excess clause in the construction manager's Zurich policy, the court held that the roofing contractor's Diamond State umbrella policy was excess to the Zurich policy. The court explained:

 

"Sahlem [the roofing contractor] paid $43,750 for $10,000,000 in umbrella coverage under the Diamond State policy, whereas Ciminelli [the construction manager] paid $414,277 for $1,000,000 in general liability coverage under the Zurich policy. In addition, . . . the Diamond State policy is an umbrella policy and its coverage is excess to other insurance, providing coverage only after the exhaustion of other excess policies, while the Zurich policy affords primary coverage. Because the Zurich policy was purchased for primary coverage, despite its other insurance' clause whereby it would provide only excess coverage under certain conditions, and the Diamond State policy was purchased only for excess coverage, the Diamond State policy is last on the risk'" (id. at 1268 [citations and internal quotation marks omitted]).

Liberty also argues that its policy should be deemed excess to the United policy based on the provision of the United "Other Insurance" clause that "this insurance is excess over any other insurance . . . except such insurance as is specifically purchased to apply in excess of this policy's Limit of Insurance" (emphasis added). This argument is without merit. Liberty does not identify in the policy it issued to Stonewall any specific reference to J & A's United policy or to the latter policy's particular limit of insurance, much less anything indicating that the Liberty policy was "specifically purchased to apply in excess" of the United policy, in particular. We agree with those courts that have held that a reference in an insurance policy to insurance "specifically purchased to apply in excess" of the subject policy (or similar phraseology) means a higher-level policy that specifically designates the subject policy as underlying insurance (see National Farmers Union Prop. & Cas. Co. v Farm & City Ins. Co., 689 NW2d 619, 623 [SD 2004]; Treder ex rel. Weigel v LST, L.P., 271 Wis 2d 771, 784, 679 NW2d 555, 561 [Wis App 2004], review denied 273 Wis 2d 656, 684 NW2d 137 [2004]; Allstate Ins. Co. v Frank B. Hall & Co., 770 P2d 1342, 1347 [Colo App 1989]).[FN8]

Having established that the United policy is excess to the Liberty policy with regard to the duty to defend and indemnify the Bovis plaintiffs, we turn to the Illinois policy issued to Bovis, the construction manager [FN9]. The "Other Insurance" clause of the CGL coverage form incorporated by the Illinois policy has been amended by endorsement to provide in pertinent part:

"This insurance is excess over any of the other insurance whether primary, excess, contingent or on any other basis:

(1)Unless such insurance is specifically purchased to apply as excess of this policy, or

(2)you [Bovis] are obligated by contract to provide primary insurance" (emphasis added).

Plaintiffs deny that the Illinois policy constitutes primary insurance for purposes of the Goncalves action under the above-quoted provision. We disagree. The construction management agreement between DASNY and Bovis for the Bronx County Criminal Court Complex project plainly required Bovis, as construction manager (and not just the downstream contractors and subcontractors, such as Stonewall and J & A), to obtain and maintain primary CGL insurance covering DASNY and NYC as additional insureds [FN10]. Since the Illinois policy provides that its coverage is primary if Bovis is "obligated by contract to provide primary insurance," the Illinois policy - by its own terms - provides primary coverage for claims arising from the construction of the Bronx County Criminal Court Complex. Given the primary coverage afforded by the Illinois policy in this context, it follows that the United policy - which, again, is an umbrella policy providing a secondary level of coverage in exchange for a relatively small premium - is excess to the Illinois policy for purposes of the Goncalves action.[FN11]

Plaintiffs and Liberty argue that, in holding the Bovis plaintiffs' coverage as additional insureds under the United umbrella policy to be excess to their coverage under the Liberty and Illinois policies, we run afoul of the principle that an additional insured "enjoy[s] the same protection as the named insured" (BP A.C. Corp., 8 NY3d at 715, quoting Pecker, 99 NY2d at 393). Pointing out that United's coverage of its named insured (J & A) would be triggered immediately upon exhaustion of the underlying QBE policy, plaintiffs and Liberty contend that delaying the trigger of the Bovis plaintiffs' coverage until the Liberty and Illinois policies have been exhausted as well affords the additional insureds less protection than the named insured. This argument ignores the fact that the Bovis plaintiffs have more primary insurance available to them - $2 million more, in fact - than does J & A. Given the Bovis plaintiffs' greater amount of primary coverage, it is the application of the plain terms of the United policy - the same terms that govern the named insured's coverage - that results in the later trigger of the Bovis plaintiffs' coverage.

It is possible, of course, for an insurance policy to provide that additional insureds will enjoy greater protection than the named insured. Indeed, the aforementioned "Primary Insurance Clause Endorsement" to the Liberty policy (providing that coverage for an additional insured "shall apply as primary and not contributing with any insurance carried by such additional insured") apparently constitutes such a provision. The United policy, however, contains no such provision.

An additional line of argument by plaintiffs is also unavailing. After the conclusion of the Goncalves action, it may (or may not) ultimately turn out, as plaintiffs posit, that Illinois, on account of its payment of its share of the costs of defending and indemnifying its insureds in the Goncalves action, will become subrogated to a claim by those insureds for contractual indemnification from J & A, and that J & A will ultimately be entitled to indemnification for its liability on that claim under the coverage for contractual liability afforded by J & A's United policy [FN12]. Further, should a judgment for such indemnification eventually be entered in favor of Illinois against J & A, and remain unsatisfied for 30 days, Illinois will be entitled to bring a direct action against United to recover any contractual liability coverage available to J & A under its United policy (see Insurance Law § 3420[a][2], [b][2]; Northland Assoc. v Joseph Baldwin Constr. Co., 6 AD3d 1214, 1216 [2004]). The possibility of this scenario's playing out in the long run does not, however, have the effect, at this stage, of negating the priority of coverage among the applicable policies arising from the terms of those policies (see Harleysville Ins. Co. v Travelers Ins. Co., 38 AD3d 1364, 1367 [2007], lv denied 9 NY3d 811 [2007]; United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d at 1165). The rights and obligations of the insurers are governed by their respective insurance policies, not by the underlying trade contracts among the insureds.[FN13]

At this point in our analysis, we have ascertained that the order of coverage of the Bovis plaintiffs, after exhaustion of the QBE policy, will be Liberty, Illinois, and United, in that order. We further conclude, based on the policy provisions set forth below, that Stonewall's umbrella policy from Westchester will share the Bovis plaintiffs' loss with United, J & A's umbrella carrier, on a pro rata basis after the exhaustion of the Illinois policy.

The Westchester policy, like the United policy, is denominated an "umbrella" policy, and provides coverage only for losses "in excess of the Retained Limit,'" the latter term being defined, in pertinent part, to mean "the total of the applicable limits of the Underlying Insurance' [as here relevant, the Liberty policy] plus the applicable limits of any other insurance." The Westchester policy's "Other Insurance" clause provides:

"H. Other Insurance. If there is any other collectible insurance available to the insured' (whether such insurance is stated to be primary, contributing, excess or contingent) that covers a loss that is also covered by this policy, the insurance provided by this policy will apply in excess of, and shall not contribute with, such insurance. This Condition H does not apply to any insurance policy purchased specifically (and which is so specified in such insurance policy) to apply in excess of this policy."

The foregoing policy provisions make it plain that the Westchester policy, like the United policy, was intended to be true excess insurance. Since United and Westchester "both hav[e] contracted to cover the same risk on the same level," and have employed essentially mirror-image excess clauses in the "Other Insurance" provisions of their respective policies, "the excess coverage clauses are deemed to cancel each other out and each carrier is required to contribute ratably in such proportion as its policy limit bears to the total of all policy limits [at the same level]" (LiMauro, 65 NY2d at 373-374).

What emerges is that, among the Liberty, Illinois, United and Westchester policies, the order of coverage of the Bovis plaintiffs in the Goncalves action, after exhaustion of the QBE policy's $1 million per-occurrence limit, will be: (1) Liberty (up to its $1 million per-occurrence limit); (2) Illinois (up to its $1 million per-occurrence limit); and (3) United and Westchester, sharing ratably, each up to the limit of its coverage.[FN14]

In addition to ruling on the priority of coverage for the Bovis plaintiffs, Supreme Court granted Liberty summary judgment declaring that the order of coverage for Liberty's named insured, Stonewall (which is not covered by the Illinois policy), would be QBE first (as QBE agreed), United second, and Liberty third. (It is undisputed that Westchester's umbrella coverage of Stonewall is triggered upon the exhaustion of Liberty's primary coverage.) We find that this aspect of the order appealed from must be modified to provide that the order of Stonewall's coverage, after exhaustion of the QBE policy, is Liberty and then, upon exhaustion of Liberty's coverage, Westchester, without contribution by United at any stage.

Notwithstanding that Stonewall falls within the definition of an "insured" under the above-quoted provisions of the United policy that afford the Bovis plaintiffs coverage ("SECTION III - WHO IS AN INSURED," paragraph 2, subparagraphs [e] and [f]), those provisions, as previously noted, provide that an additional insured is not afforded coverage "in excess of . . . [t]he minimum limit of insurance you [the named insured] agreed to provide." Here, contrary to Liberty's arguments, J & A, United's named insured, did not agree to provide Stonewall with CGL coverage having a per-occurrence limit of $5 million. The insurance requirements of the DASNY/Stonewall contract (footnote 3, supra), which were incorporated into the Stonewall/J & A subcontract, did not include any mandate that Stonewall's subcontractors obtain coverage for Stonewall, as opposed to Bovis, DASNY and NYC. While the Stonewall/J & A subcontract contained a separate provision requiring J & A to obtain insurance covering Stonewall, this provision required J & A to obtain CGL coverage for Stonewall with a per-occurrence limit of only $1 million. The QBE primary policy satisfies this limit by itself. Since the United policy does not afford additional insureds greater coverage than J & A was contractually obligated to provide, United does not owe Stonewall any coverage in connection with the Goncalves action.[FN15]

As previously noted, one of the defendants in this declaratory judgment action is Great American, the primary CGL carrier of A.J. McNulty, a subcontractor that allegedly performed work on the elevator shaft where the accident occurred. A.J. McNulty (which, it should be remembered, was not the decedent's employer) has not been named as a defendant in the Goncalves action (although the Bovis plaintiffs and Stonewall have commenced a third-party action against it therein). At this point, no determination has been made as to whether A.J. McNulty bears any responsibility for the accident. Nonetheless, in its summary judgment motion, United sought a determination of the priority of Great American's coverage, if any, of the Bovis plaintiffs in the Goncalves action. United argued that Supreme Court should declare that the Bovis plaintiffs' coverage under the United umbrella policy will not be triggered until their coverage (if any) under the Great American policy, as well as the coverage under the Liberty and Illinois policies, has been exhausted. The court denied such relief.

On this record, Supreme Court correctly declined to render any declaration concerning the priority of Great American's coverage of the Bovis plaintiffs, if any, in the Goncalves action. As United itself concedes, "whether any of the [Bovis plaintiffs] are additional insureds under the Great American policy has not been determined." Again, the Goncalves decedent was not employed either by A.J. McNulty (Great American's named insured) or by any subcontractor of A.J. McNulty. Thus, under the terms of the Great American policy's additional insured provision, whether the Bovis plaintiffs are additional insureds under the Great American policy for purposes of the Goncalves action depends on its being proven, or (for purposes of the duty to defend) alleged in the Goncalves complaint, that liability for the accident somehow otherwise "aris[es] out of [A.J. McNulty's] ongoing operations for" the Bovis plaintiffs before such "operations . . . [were] completed." The complaint in the Goncalves action, however, does not name A.J. McNulty as a defendant, does not allege that the accident was the result of any fault on the part of A.J. McNulty, and does not allege that the accident occurred while A.J. McNulty's work was ongoing at the site. Accordingly, at this stage, the Bovis plaintiffs cannot be said to be additional insureds under the Great American policy for purposes of the Goncalves action. It would be inappropriate to render an advisory opinion concerning where Great American would fit into the order of coverage for the Goncalves action in the hypothetical event it is determined that the Great American policy affords the Bovis plaintiffs coverage for that lawsuit.[FN16]

Westchester, Stonewall's umbrella carrier, argues that it was premature for Supreme Court to render any determination concerning the priority of coverage among any of the policies at issue in this action. In support of this position, Westchester points out that, on the existing record, it cannot be determined whether, and to what extent, Great American (as A.J. McNulty's carrier) and the insurers of other contractors being sued in the Goncalves action have defense and indemnity obligations to the Bovis plaintiffs under the additional insured provisions of their respective policies. This argument is without merit. Regardless of the uncertainty as to the responsibility of insurers for other contractors, the priority of coverage for the Bovis plaintiffs among Liberty, Illinois, United and Westchester can be determined on the existing record. Apart from the question of priority of coverage, there is no dispute as to the Bovis plaintiffs' entitlement to defense and indemnification in the Goncalves action from each of these four insurers. All of the insurance policies and trade contracts relevant to the insurers' obligations to the Bovis plaintiffs are in the record. That other insurers may subsequently be found to have obligations to the Bovis plaintiffs in this matter is not a reason to delay adjudicating the priority of coverage, inter se, among Liberty, Illinois, United and Westchester (see Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 655-656 [1993]).

Accordingly, the order of the Supreme Court, New York County (Carol Edmead, J.), entered April 6, 2006, which granted summary judgment motions by plaintiffs and Liberty, and denied a summary judgment motion by United, to the extent of declaring, in effect, that the order of the obligation to defend and indemnify Bovis, DASNY, NYC, and Stonewall in an underlying wrongful death action entitled Maria Goncalves, etc., et al. v The Dormitory Authority of the State of New York, et al., Bronx County Clerk's Index No. 21460/04, is (1) QBE, up to the $1 million limit of its coverage, (2) upon exhaustion of QBE's coverage, United, up to the $4 million limit of its coverage, (3) upon exhaustion of QBE's and United's coverage, Liberty, up to the $1 million of its coverage, and (4) upon exhaustion of QBE's, United's and Liberty's coverage, Westchester, up to the $10 million limit of its liability, should be modified, on the law, (a) to declare that, upon the exhaustion of QBE's coverage, the order of the obligation to defend and indemnify Bovis, DASNY and NYC in the aforesaid underlying wrongful death action is (1) Liberty, up to the $1 million limit of its coverage, (2) upon exhaustion of QBE's and Liberty's coverage, Illinois, up to the $1 million limit of its coverage, and (3) upon exhaustion of QBE's, Liberty's and Illinois' coverage, United and Westchester, sharing on a pro rata basis, up to the respective limits of their policies, and (b) to declare further that, upon exhaustion of QBE's coverage, the order of the obligation to defend and indemnify Stonewall in the aforesaid underlying wrongful death action is (1) Liberty, up to the $1 million limit of its coverage, (2) upon exhaustion of QBE's and Liberty's coverage, Illinois, up to the $1 million limit of its coverage, and (3) upon exhaustion of QBE's, Liberty's and Illinois' coverage,
Westchester, up to the $10 million limit of its coverage, and otherwise affirmed, without costs.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 10, 2008

CLERK

Footnotes


Footnote 1:Although Bovis was construction manager, the prime contractors (such as Stonewall and SMI-Owen) entered into agreements directly with DASNY, as owner.

Footnote 2:United has commenced a third-party action seeking declaratory relief against two additional insurers, J & A's workers' compensation carrier and the CGL carrier of H.J. Russell & Company, one of the contractors sued in the Goncalves action. The obligations of the third-party defendants, if any, are not at issue on this appeal.

Footnote 3:As more fully discussed toward the end of this decision, it cannot be determined on the existing record whether, for purposes of the Goncalves action, the Bovis plaintiffs are additional insureds under A.J. McNulty's Great American policy.

Footnote 4:Under its subcontract with Stonewall, J & A was obligated to obtain insurance meeting the requirements of Stonewall's contract with DASNY, which were, in relevant part: "Commercial General Liability (CGL) with a combined single limit for Bodily Injury, Personal Injury and Property Damage of at least $5,000,000 per occurrence & aggregate. The limit may be provided through a combination of primary and umbrella/excess liability policies. "Coverage shall provide and encompass at least the following: a.Written on an occurrence form; b.Endorsement naming [Bovis, DASNY and NYC, inter alia] as additional insured's [sic] . . . c.Policy or policies must be endorsed to be primary as respects the coverage afforded the Additional Insureds and such policy shall be primary to any other insurance maintained by the OWNER or any other additional insured. Any other insurance maintained by the OWNER shall be excess of and shall not contribute with the Contractor's or Subcontractor's insurance, regardless of the other insurance' clause . . . ." In addition, a separate rider to the Stonewall/J & A subcontract required J & A to obtain CGL coverage with "Additional Insured's [sic] to be included on a primary basis," and contained the following provision: "Insurance policies shall be endorsed to name owner [sic] and Contractor as additional insured's [sic], and shall stipulate that this insurance is primary, that any other insurance or self-insurance maintained by Owner and Contractor shall be excess only and shall not be called upon to contribute with this insurance." As more fully discussed below, United and Liberty dispute how much CGL coverage J & A was contractually obligated to obtain for Stonewall (as opposed to Bovis, DASNY and NYC).

Footnote 5:While the provisions of the United policy creating additional insured coverage state that such coverage will not exceed "[t]he minimum limit of insurance you agreed to provide," the quoted phrase cannot reasonably be construed as a reference to priority of coverage. Even if the phrase could somehow be so construed, the statement that coverage is not being afforded "in excess of . . . [t]he minimum limit of insurance" the named insured agreed to provide plainly does not mean that coverage is being provided up to that limit.

Footnote 6:Under paragraph 2 of "SECTION IV - LIMITS OF INSURANCE" of the United policy (as amended by endorsement), the $5 million "Policy Aggregate Limit" and the $5 million "Products-Completed Operations Aggregate Limit" set forth in the Declarations apparently do not count against each other.

Footnote 7:We note that the Subcontractors Endorsement to the Liberty policy does not expressly refer to subcontractors' excess and umbrella coverage. Since the Subcontractors Endorsement does not make express reference to excess and umbrella coverage, we need not consider what the priority of coverage between the Liberty and United policies would have been had the Liberty policy expressly provided that it was excess to any coverage afforded the insured by subcontractors' excess and umbrella policies.

Footnote 8:Since the United policy is an umbrella policy, it follows that the phrase "such insurance as is specifically purchased to apply in excess of this policy's Limit of Insurance" is employed in the United policy's "Other Insurance" clause to refer to a second level of excess insurance, if one exists, above the United policy itself.

Footnote 9:Liberty concedes that the Illinois policy is excess to Liberty's coverage of the Bovis plaintiffs, a point not disputed by any of the other parties.

Footnote 10:The DASNY/Bovis contract provides in pertinent part: "ARTICLE VIII: INSURANCE PROVIDED BY CONSTRUCTION MANAGER "A. CONSTRUCTION MANAGER [Bovis] shall procure and shall maintain all the insurance required under this Article until Final Acceptance of all the Work. . . . The CONSTRUCTION MANAGER and each of its Subcontractors of every tier shall provide insurance as follows: . . . 3.Commercial General Liability (CGL) with a combined single limit for Bodily Injury, Personal Injury and Property Damage of at least $5,000,000 per occurrence and aggregate. The limit may be provided through a combination of primary and umbrella/excess policies. Coverage shall provide and encompass at least the following: . . . f.Endorsement naming The City of New York, Dormitory Authority - State of New York and Bronx County Criminal Court Complex as Additional Insureds; g.Policy or policies must be endorsed to be primary as respects the coverage afforded the Additional Insureds and such policy shall be primary to any other insurance maintained by the OWNER [DASNY]. Any other insurance maintained by the Owner shall be excess of and shall not contribute with the CONSTRUCTION MANAGER'S, its Contractor's or Subcontractor's insurance, regardless of the "other insurance" clause contained in the OWNER'S own policy of insurance."

Footnote 11:The primary nature of the Illinois policy is confirmed by the substantial premium Bovis paid for it, namely, $409,500 (about five times the amount of the premium for the United umbrella policy) for $6 million aggregate potential coverage ($3 million "General Aggregate Limit" plus $3 million "Products-Completed Operations Aggregate Limit"). It should be noted that the Illinois policy did not cover all of the billions of dollars' worth of operations Bovis states that it conducts around the world. Rather, an endorsement to the Illinois policy provided that the policy applied only to losses arising out of the Bronx Criminal Court Complex construction project.

Footnote 12:As plaintiffs point out, a subcontractor on a construction project usually agrees to indemnify the general contractor and the owner for liabilities arising out of the subcontractor's work, including any liability for the injury or death of an employee of the subcontractor.

Footnote 13:Also without merit is plaintiffs' argument that the antisubrogation rule somehow bars United's effort to vindicate the excess nature of its policy (see Jefferson Ins. Co. of N.Y. v Travelers Indem Co., 92 NY2d at 375; Liberty Mut. Ins. Co. v Insurance Co. of State of Pa., 43 AD3d 666, 667 [2007]). After all, United's position is not based on a claim to be subrogated to J & A rights, but on the priority of coverage established by the terms of the relevant insurance policies.

Footnote 14:With regard to the United policy, we note that, although the monetary limit of insurance set forth in that policy is $5 million, it is undisputed that the actual limit of insurance for the Bovis plaintiffs in the Goncalves action will be $4 million. This is because the United policy provides that additional insureds are not afforded coverage "in excess of . . . [t]he minimum limit of insurance you [the named insured] agreed to provide" ("SECTION III - WHO IS AN INSURED," paragraph 2, subparagraphs [e] and [f]). Since J & A's subcontract required it to provide the Bovis plaintiffs with $5 million of coverage, and the first $1 million of such coverage is being provided by the QBE primary policy, the maximum coverage afforded the Bovis plaintiffs by the United umbrella policy is $4 million.

Footnote 15:Liberty relies on a provision of the Stonewall/J & A subcontract providing as follows: "Higher limits required depending upon particulars of each specific contract might be obtained. The above limits may be written by combination of CGL & Umbrella policies." This provision (which Stonewall drafted) is so vague and ambiguous that one can only speculate as to what it means. To the extent the provision may have been intended to provide that Stonewall might in some cases require a subcontractor to obtain greater coverage for Stonewall than the requirements previously set forth in the printed form, Liberty does not point to any record evidence that J & A ever actually agreed to any such higher insurance requirements in connection with the project at issue. Neither United nor Liberty argues that extrinsic evidence should be considered to resolve the ambiguity of the contractual language in question.

Footnote 16:It should also be noted that, although the Great American policy extends additional insured coverage (under appropriate circumstances) to any organization that A.J. McNulty "agreed in writing . . . [to] add[] as an additional insured on [A.J. McNulty's] policy," the agreement between A.J. McNulty and its general contractor in the project, SMI-Owen, is not included in the record.

Eisenberg v. Anavil

 

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, N.Y. (Rona Platt of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of an alleged duty to defend, the plaintiff appeals from (1) an order of the Supreme Court, Putnam County (O'Rourke, J.), dated March 29, 2007, which, among other things, granted the motion of the defendant New York Municipal Insurance Reciprocal for summary judgment dismissing the complaint insofar as asserted against it, and (2) a judgment of the same court dated May 16, 2007, which, upon the order, is in favor of the defendant New York Municipal Insurance Reciprocal and against him, dismissing the complaint insofar as asserted against that defendant. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).

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

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

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

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The appellant alleges that the defendant insurance carrier (hereinafter the defendant) breached its obligation to defend him in an action brought against him in federal court, causing him to incur the sum of $41,604.74 in defense costs. The causes of action against the appellant in the federal action alleged "common-law fraud," criminal conduct including racketeering activity, and conduct "in the nature of an intentional series of acts having the specific purpose of depriving the Plaintiff [in the federal action] of her property." The defendant established, prima facie, that these allegations fell within the plain meaning of the policy exclusions (see Utica First Ins. Co. v Star-Brite Painting & Paperhanging, 36 AD3d 794, 796; Hodgson v United Servs. Auto. Assn., 262 AD2d 359, 360). In opposition, the appellant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

The appellant's remaining contentions either are without merit or need not be addressed in light of our determination.

In the Matter of Country-Wide Insurance Company v. Henderson


Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of
counsel), for appellant.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Kings County (Marano, J.H.O.), dated February 5, 2007, which, after a hearing, denied the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

On April 8, 2005, the respondent Wendy Henderson was involved in an automobile accident with a vehicle owned and operated by additional respondent Kessel Pierre Charles (hereinafter the Pierre Charles vehicle). At the time of the accident, Henderson's vehicle was insured by the petitioner, Country-Wide Insurance Company (hereinafter Country-Wide). The Pierre Charles vehicle was insured by respondent Travelers Indemnity Insurance Company (hereinafter Travelers). By letters dated May 23, 2005, and May 25, 2005, Travelers informed Pierre Charles that it was disclaiming coverage due to his failure to cooperate with their investigation. Henderson filed a demand for uninsured motorist arbitration with Country-Wide. Thereafter, Country-Wide commenced the instant proceeding to permanently stay arbitration, and Pierre Charles and Travelers were named as respondents. Following a hearing on the issue of Travelers' disclaimer based upon lack of cooperation, the Supreme Court denied the petition, finding that the disclaimer was valid. We reverse.

The sole evidence presented by Travelers to the Supreme Court in support of its noncooperation disclaimer was an affidavit from an investigator within its Special Investigations Unit who had no personal knowledge of the efforts made to locate Pierre Charles. The affidavit merely recited the apparent efforts of an unnamed investigator and attached copies of letters to Pierre Charles from a claims representative. The affidavit was based entirely upon hearsay evidence with no proof that it fell within any exception to the hearsay rule, e.g., the business records exception. As such, it was inadmissible and failed to provide a sufficient basis for the Supreme Court to determine the validity of Travelers' disclaimer (see generally Nucci v Proper, 95 NY2d 597, 602-603; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676; Northeast Caissons v Columbus Constr. Corp., 268 AD2d 512; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456-457).

In any event, Travelers failed to demonstrate that it met the requirements set forth in Thrasher v United States Liab. Ins. Co. (19 NY2d 159) to disclaim coverage based upon the insured's lack of cooperation. The heavy burden of proving a lack of cooperation is on the insurer (id. at 168). "An insurer who seeks to disclaim coverage on the ground of noncooperation is required to demonstrate that (1) it acted diligently in seeking to bring about the insured's cooperation, (2) its efforts were reasonably calculated to obtain the insured's cooperation, and (3) the attitude of the insured, after its cooperation was sought, was one of willful and avowed obstruction" (Utica First Ins. Co. v Arken, Inc., 18 AD3d 644, 645; see Thrasher v United States Liab. Ins. Co., 19 NY2d at 168-169).

Here, while Travelers' efforts in attempting to locate Pierre Charles and sending correspondence to him demonstrate that it acted diligently in trying to secure his cooperation, Travelers failed to demonstrate that its efforts were reasonably calculated to bring about his cooperation. While the affidavit of Travelers' investigator correctly showed that the surname of their insured was "Pierre Charles," the correspondence from the claims representative and the Department of Motor Vehicles and Board of Elections search requests in both New York City and Nassau County incorrectly gave "Kessel" as the surname. Under such circumstances, it cannot be said that the efforts employed, even if diligently undertaken, were reasonably calculated to bring about Pierre Charles' cooperation.

Regarding the third prong of the Thrasher test, that the attitude of the insured be one of willful and avowed obstruction, it is highly questionable that Pierre Charles ever received notice of the disclaimer from Travelers as a result of the incorrect name identification. Moreover, even if he had received notice, mere efforts by the insurer and mere inaction on the part of the insured, without more, are insufficient to establish non-cooperation as "the inference of non-co-operation must be practically compelling" (Matter of Empire Mut. Ins. Co. [Stroudy Boston Old Colony Ins. Co.], 36 NY2d 719, 721; see Matter of New York Cent. Mut. Fire Ins. Co. v Bresil, 7 AD3d 716, 717).

Since Travelers failed to establish a right to disclaim coverage on the ground of lack of cooperation, the petition to permanently stay Henderson's uninsured motorist arbitration claim should have been granted.

In the Matter of Progressive Northern Insurance Company v. Sachs


Nesci Keane Piekarski Keogh & Corrigan, White Plains, N.Y.
(Jason M. Bernheimer of counsel), for appellant.
Michael V. Devine, Port Jefferson, N.Y., for respondent.


DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated September 10, 2007, which denied the petition.

ORDERED that the order is affirmed, with costs.

On May 25, 2002, the respondent, George Sachs, was riding his motorcycle when he and another motorcyclist were involved in an accident with an automobile. He subsequently informed his insurer, the petitioner, Progressive Northern Insurance Company, of the accident and also that he was not making a claim under the collision damages portion of his insurance policy. Moreover, since Insurance Law § 5102(f) expressly excludes motorcycles from the definition of "motor vehicle," and insurance policies covering motorcycles consequently do not provide first-party benefits for any medical expenses and lost wages incurred by an operator of a covered motorcycle who is injured while operating it, Sachs did not make any claim for first-party benefits.

On May 17, 2005, Sachs allegedly commenced an action against the driver and owner of the automobile to recover damages for his injuries and for the damage to his motorcycle. In February 2007, Sachs allegedly discovered that his injuries were more severe than originally diagnosed, and had surgery in an attempt to repair them.

Thereafter, Sachs notified the petitioner of his intent to make a claim under the supplementary underinsured motorists (hereinafter SUM) provision of his policy. After there had been some communication between Sachs's counsel and the petitioner's representatives, Sachs's counsel was notified that the petitioner was going to deny the claim. In response, Sachs's counsel served a demand for arbitration.

The petitioner then commenced this proceeding to permanently stay the arbitration. The petitioner alleged that the arbitration should be stayed, inter alia, by virtue of Sachs's failure to comply with a condition precedent of the policy requiring notification as soon as practicable after a loss. In opposition thereto, Sachs's counsel asserted that any delay by Sachs was excusable, since he did not learn of the seriousness of his injuries until February 2007, a mere two months prior to notifying the petitioner of his claim.

The Supreme Court denied the petition based on the petitioner's failure to demonstrate that it was prejudiced. We affirm, but for a reason different from that relied upon by the Supreme Court.

It is undisputed that Sachs did not notify the petitioner until April 2007 that he was making a SUM claim in connection with his injuries arising from the May 2002 accident. This was sufficient to make out the petitioner's prima facie case entitling it to disclaim coverage and for a permanent stay of arbitration (see Steinberg v Hermitage Ins. Co., 26 AD3d 426, 427; Matter of First Cent. Ins. Co., 3 AD3d 494). In response, the uncontroverted affirmation of Sachs's attorney, to the effect that Sachs was unaware of the seriousness of his injuries until early in 2007, was sufficient to show, as a matter of law, the existence of a valid excuse for that delay (see generally Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 493-495; St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030, 1031-1032; cf. Deso v London & Lancashire Indem. Co. of Am., 3 NY2d 127, 129; Matter of Nationwide Mut. Ins. Co. v DiGregorio, 294 AD2d 579).

In light of this determination, we need not reach the parties' remaining contentions.

In the Matter of State Farm Insurance Company v. Williams


Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (Brian F.
Curran of counsel), for petitioner-respondent.


DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, Evadnie Williams, incorrectly sued herein as Evadine Williams, appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated May 16, 2006, which granted the petition and, in effect, denied her motion to dismiss the proceeding as time-barred.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the petitioner issued an insurance policy to Angela Sewell-Sinclair bearing the number 11-1952-T92, and for a new determination of the petition to stay arbitration and the motion to dismiss the proceeding thereafter.

On May 23, 2005, Evadnie Williams, incorrectly sued herein as Evadine Williams, was injured in an automobile collision while operating a motor vehicle owned by Angela Sewell-Sinclair. Williams subsequently served the petitioner, Sewell-Sinclair's insurer, with a series of notices of intention to arbitrate a claim for uninsured motorist benefits, dated June 22, 2005, September 2, 2005, and February 7, 2006, respectively. These notices conformed to the requirements of CPLR 7503(c) and identified the number of the policy under which arbitration was being sought as 11-1952-T92. Although each notice apprised the petitioner of the statutory 20-day time limit within which to seek a stay of arbitration, the petitioner did not commence this proceeding to permanently stay arbitration until February 23, 2006, asserting that the other vehicle involved in the collision was insured.

Williams moved to dismiss the proceeding as barred by the expiration of the statutory 20-day time limit. In opposition, the petitioner produced an affidavit of a claims representative which recited that a search of the petitioner's records revealed that "there is no policy number 11-1952-T92," and that Sewell-Sinclair, in fact, had been insured under policy number 2866-452-11. Accordingly, the petitioner contended that the notices given by Williams were defective and never triggered the running of the 20-day period of CPLR 7503(c). In reply, Williams contended that the notices were proper, and produced a copy of an insurance identification card which appeared to indicate that the petitioner issued to Sewell-Sinclair a policy bearing the number 11-1952-T92 and covering the vehicle operated by Williams, only three days before the accident.

The Supreme Court granted the petition to permanently stay arbitration, and, in effect, denied Williams's motion to dismiss the proceeding, finding that the notices provided by Williams contained an incorrect policy number.

An insurer which fails to seek a stay of arbitration within 20 days after being served with a notice of intention to arbitrate under CPLR 7503(c) is generally precluded from objecting to the arbitration thereafter (see Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082; Matter of Spychalski [Continental Ins. Cos.], 45 NY2d 847; Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182; Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 636; Matter of Travelers Prop. Cas. Corp. v Klepper, 275 AD2d 234). This rule is equally applicable to the arbitration of uninsured motorist claims, and an untimely application for a stay of arbitration will be rejected regardless of proof that the offending vehicle actually had insurance coverage (see Matter of Travelers Indem. Co. v Castro, 40 AD3d 1005; Matter of Hartford Ins. Co. v Buonocore, 252 AD2d 500).

All three mailings by Williams constituted notices of intention to arbitrate under CPLR 7503(c) (see Matter of Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d 477; Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441; Matter of Nassau Ins. Co. [Clemente], 100 AD2d 969). Accordingly, the commencement of this proceeding to stay the arbitration on February 23, 2006, approximately eight months after the petitioner's receipt of the notice of intent to arbitrate dated June 22, 2005, clearly exceeded the 20-day statutory time limit (see Matter of Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d 477; Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441).

In support of its petition, the petitioner submitted an affidavit indicating that the policy number set forth on the notices was erroneous and did not exist, thereby making the notices defective and insufficient to trigger the running of the 20-day period (see Matter of Northern Assur. Co. of Am. v Bollinger, 256 AD2d 580; see generally Matter of Blamowski [Munson Transp.], 91 NY2d 190; Matter of Albert Bialek Assoc. [Northwest-Atlantic Partners], 251 AD2d 145; Sleepy Hollow Dev. & Community Improvement Hous. Dev. Fund Co. v De Angelis, 51 AD2d 267). However, the insurance card produced by Williams in reply raised a factual issue with regard to whether a policy with that number was, in fact, issued, in which case the notices would be valid and the instant proceeding would be time-barred. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the petitioner issued an insurance policy to Sewell-Sinclair bearing the number 11-1952-T92, and for a new determination of the petition to stay arbitration and the motion to dismiss the proceeding thereafter.

Matter of Travelers Insurance Company v. Bynum.

 

Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl 2nd
of counsel), for appellant.
Karen C. Dodson, White Plains, N.Y. (Andre Del Re of counsel),
for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Orange County (McGuirk, J.), dated August 23, 2006, which granted the petition and permanently stayed the arbitration.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith.

Contrary to the Supreme Court's conclusion, the vehicle in which the appellant's decedent was killed was an uninsured motor vehicle (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639; Matter of Liberty Mut. Ins. Co. v Saravia, 271 AD2d 534).

Furthermore, under the circumstances presented, we conclude that the Supreme Court should have conducted a hearing to determine whether the appellant's decedent was an "insured" within the meaning of the subject policy (cf. Matter of Liberty Mut. Ins. Co. v Saravia, 271 AD2d 534; Matter of Graphic Arts Mut. Ins. Co., 214 AD2d 976). Accordingly, we remit the matter for such a hearing and thereafter, for a new determination of the petition to permanently stay arbitration of the uninsured motorist claim

ExxonMobil Corporation v. Certain Underwriters at Lloyd's, London


Howrey LLP, Washington, DC (Jeffrey M. Lenser, of the
District of Columbia Bar, admitted pro hac vice, of counsel), for
appellant.
Locke Lord Bissell & Liddell LLP, Chicago, IL (Laura S.
McKay, of the State of Illinois Bar, admitted pro hac vice, of
counsel), for respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered June 5, 2007, which denied plaintiff's motion for partial summary judgment and granted defendants' motion for partial summary judgment on the ground that the underlying product liability claims against plaintiff constituted multiple occurrences under the insurance policies at issue, unanimously affirmed, with costs.

An "occurrence" is defined in the policies as "an accident, an event or a continuous repeated exposure to conditions which result in personal injury or property damage, provided all damages arising out of such exposure to substantially the same general conditions existing at or emanating from each premises location of the Assured shall be considered as arising out of one occurrence." This does not reflect an intention of the parties to aggregate individual claims for the purpose of subjecting them to a single policy deductible (see International Flavors & Fragrances, Inc. v Royal Ins. Co. of Am., 46 AD3d 224 [2007]). Had they intended to aggregate all claims resulting from the manufacture of plaintiff's product, "it would have been a simple matter to rewrite the definition of occurrence'" (id. at 229).

In the absence of a specific aggregation-of-claims provision precisely identifying the operative incident or occasion giving rise to liability, the court must apply the "unfortunate events" test (see Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222 [1959]) to determine whether the underlying multiple claims constitute multiple "occurrences" under the policy (see Appalachian Ins. Co. v General Elec. Co., 8 NY3d 162, 173 [2007]; International Flavors, 46 AD3d at 228). Under this test, the manufacture and sale of plaintiff's two defective products did not constitute a single occurrence. Each installation of ExxonMobil's polybutylene resin into a municipal utility water system, and each introduction of AV-1 lubricant into an aircraft engine, created "exposure" to a condition that resulted in property damage, to multiple claimants on different dates over many years. Under the circumstances, the underlying product liability claims "share few, if any, commonalities" (Appalachian, 8 NY3d at 174).

Gorden v.  Tibulcio


Napoli Bern Ripka, LLP, New York (Denise A. Rubin of counsel), for appellant.
Picciano & Scahill, P.C., Westbury (Gilbert J. Hardy of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 9, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that he sustained personal injuries in September 2002 while a passenger in a vehicle, driven by his brother, which became involved in an accident. He claims that when the accident occurred, his chest and knees hit the dashboard and his right shoulder hit the door of the vehicle.

In his bill of particulars, plaintiff specified the following injuries: disc herniations, disc bulging, degeneration of the parespinal muscles, sensory loss of the upper extremities, impaired mobility, pain aggravated by coughing and sneezing, difficulty standing or sitting, and difficulty walking and climbing stairs. His supplemental bill of particulars alleged injuries to his knees, including tears of the menisci, buckling, locking, instability, burning, clicking and swelling. Plaintiff claims he was confined to bed for approximately 90 days, confined to home for approximately 6 months, and was partially disabled.

At his deposition, plaintiff testified that he could not return to work from the date of the accident until January 2003, and that he remained confined to bed and/or home for approximately four months after the accident. He also testified that he first sought medical treatment approximately one week after the accident, complaining of pain in both knees, both shoulders, and his neck and back. He undertook a four-month course of physical therapy, which included acupuncture, massage, electrical stimulation and chiropractic, five days a week. He was also sent for radiological studies, including an MRI.

Plaintiff further testified he had been involved in a prior auto accident in September 2000 that resulted in injuries to his neck and lower back. He commenced a lawsuit for that accident that was settled for $500.00.

Two independent medical examinations were conducted on plaintiff. The first was performed in January 2005 by Dr. Michael J. Katz, an orthopedist. Dr. Katz reviewed the X-ray, MRI and EMG reports taken at the time of the 2002 accident and performed various range-of-motion tests on plaintiff's cervical and lumbar spine, knees and shoulders. Dr. Katz found plaintiff's range of motion to be normal and concluded that cervical and lumbosacral strains, as well as the bilateral knee and shoulder contusions, were all "resolved." Dr. Katz further opined that plaintiff showed "no signs or symptoms of permanence on a causally related basis," that he was not disabled, and was "capable of gainful employment as a security guard, but is not working by choice. He is capable of all activities of his daily living."

The second independent medical examination, conducted in June 2005 by Dr. Burton S. Diamond, a neurologist, also found plaintiff's range of motion to be within normal ranges. Although Dr. Diamond noted a decreased range of motion in the low back area, based upon the results of various tests, he concluded that "this restriction was purely voluntary." He also concluded that plaintiff's cervical and lumbar sprain was resolved, there was no permanency to his condition, that plaintiff was capable of working on a full-time basis and performing the normal activities of daily living.

Defendants moved for summary dismissal of the complaint on the ground that plaintiff did not meet the serious injury threshold set forth in Insurance Law § 5102(d). In opposition, plaintiff submitted four medical reports from his treating physicians at the time of the accident, which included copies of the radiologic and MRI studies. In an affirmed follow-up report dated October 28, 2002, Dr. Jefferson Gabella compared range-of- motion limitations to the normal range in a percentage format, and he diagnosed plaintiff as having lumbar sprain/strain, lumbar radiculopathy, cervical herniated/bulging discs, and internal derangement of the left shoulder and right knee. Dr. Gabella opined that these injuries were causally related to the 2002 accident and limited plaintiff in the activities of daily living.

Plaintiff also submitted the affirmed report of his current treating physician, Dr. Louis C. Rose, who first examined plaintiff some 3 ½; years after the accident. He also reviewed the MRI studies and X-ray evaluations from 2002. Although Dr. Rose reported restricted range of motion, he did not indicate in his report the normal range of motion for the areas tested. Dr. Rose concluded plaintiff's injuries to his shoulders and knees were a "direct result" of the 2002 accident, and his spinal injuries were due to an "exacerbation of a pre-existing injury to his neck and lower back."

The IAS court found that defendants established a prima facie case of entitlement to summary judgment, and that plaintiff failed to raise triable issues of fact that he had sustained a qualifying injury under Insurance Law § 5102(d). The court found that with the exception of Dr. Rose's affirmation, none of the medical documentation was submitted in admissible form. Moreover, Dr. Rose relied on unsworn medical reports to reach his conclusions after an examination that took place more than three years after the accident, and his report failed to state with specificity the normal range-of-motion with respect to tests he had performed on plaintiff.

Defendants met their burden of establishing prima facie entitlement to summary judgment that plaintiff did not sustain a serious injury under Insurance Law § 5102(d). The affirmed reports of an orthopedist and neurologist, made after a review of plaintiff's medical records and a personal examination in 2005, stated that as of that date, plaintiff did not suffer from a neurologic or orthopedic disability, and that the injuries to plaintiff's shoulder, cervical and lumbar injuries were resolved (see Perez v Hilarion, 36 AD3d 536 [2007]). Moreover, the reviews conducted by these doctors of plaintiff's medical records, MRIs and the treating physicians' reports, including the records of treatment during the 180-day treatment period immediately following the accident, were insufficient to establish that plaintiff had sustained a serious injury under the 90/180 category of Insurance Law § 5102[d], thus shifting the burden to plaintiff to establish triable issues of fact with respect to these claims (see Nelson v Distant, 308 AD2d 338, 339 [2003]).

At the time of the incident, plaintiff's physicians made three references to plaintiff's ability to perform his usual and customary activities for 90 of the 180 days following the incident: Dr. Gabella's September 30, 2002 report stated he instructed plaintiff not to perform "heavy work" until told to do so by the doctor; Dr. Mohamed K. Nour's October 15, 2002 report recommended that plaintiff "Avoid any strenuous activities as lifting, carrying, pushing or pulling heavy weights"; and Dr. Gabella's October 28, 2002 report concluded that "patient is somewhat limited in activities of daily living." These statements are too general in nature to raise an issue of fact that plaintiff was unable to perform his usual and customary activities during the statutorily required time period and do not support plaintiff's claim that his confinement to bed for 90 days and to home for 6 months was medically required.

Under the permanent consequential limitation and significant limitation categories of Insurance Law § 5102(d), plaintiff must submit medical proof containing "objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]). Certainly, the reports of defendants' examining doctors are detailed and contain such objective, quantitative evidence. While the unsworn MRI reports that plaintiff submitted in opposition to the motion were improperly rejected by the motion court (see Thompson v Abbasi, 15 AD3d 95, 97 [2005], citing inter alia, Ayzen v Melendez, 299 AD2d 381 [2002]), the material contained therein was reviewed and cited by plaintiff's physicians in their respective reports. Dr. Rose's report cites an MRI taken of plaintiff's knees a few weeks after the accident, revealing "intrasubstance tear and/or mixoid degeneration involving the posterior horn of both menisci." Dr. Rose diagnosed "internal derangement . . . with possible medial meniscal tear." However, he does not explain why he ruled out degenerative changes as the cause of the internal derangement. This failure rendered his opinion speculative that the derangement was caused by the accident (see Abreu v Bushwick Bldg. Prods. & Supplies, LLC, 43 AD3d 1091, 1092 [2007]). Similarly, MRIs of plaintiff's spine taken shortly after the accident revealed herniations and other pathologies that plaintiff's expert opines were sustained in the September 2000 motor vehicle accident and exacerbated by the instant September 2002 accident, but the expert does not indicate that he reviewed the medical records concerning plaintiff's condition immediately following the previous accident. Thus, there is no objective basis by which to measure the claimed aggravation of injuries, or to attribute any new injuries to the later accident (McNeil v Dixon, 9 AD3d 481, 483 [2004]). Moreover, while plaintiff's expert states plaintiff had a restricted range of motion, he does not indicate the normal range for the areas tested, and he further fails to describe the objective tests he used to measure the restrictions reported (see Shaw v Looking Glass Assoc., LP, 8 AD3d 100, 103 [2004]). Also unexplained is plaintiff's lack of treatment since January 2003 (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

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

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Ali v. Khan


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy Seldin of counsel), for appellants.
Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about September 28, 2007, which denied defendants' motion for summary judgment dismissing so much of the complaint as brought by plaintiffs Ali and Akhtar for lack of the requisite serious injury, unanimously reversed, on the law, without costs, and the motion granted and the complaint dismissed as to those plaintiffs. The Clerk is directed to enter judgment accordingly.

Defendants met their burden of demonstrating that Ali and Akhtar did not sustain serious injuries as defined in Insurance Law § 5102(d), and these plaintiffs failed to produce prima facie evidence in admissible form to support such claim (see Licari v Elliott, 57 NY2d 230 [1982]). Neither of these plaintiffs presented competent medical evidence contemporaneous to the time of the accident showing the condition of her lumbar and cervical spine (see Petinrin v Levering, 17 AD3d 173 [2005]). Where the only objective evidence of limitation of motion is contained in a report of an orthopedist who examined the plaintiff several years after the accident, the finding is "too remote to raise an issue of fact as to whether the limitations were caused by the accident" (Lopez v Simpson, 39 AD3d 420, 421 [2007]). Nor was there any contemporaneous "admissible evidence that [either] plaintiff was ever diagnosed by her treating physician with a fracture that resulted from this accident" (O'Bradovich v Mrijaj, 35 AD3d 274, 275 [2006]). Inasmuch as the claimed spinal injuries were non-permanent in nature, plaintiffs failed to proffer any objective evidence of the persistence of these injuries during the statutory 90/180-day period that caused them to curtail performance of their usual and customary activities (see Norona v Manhattan & Bronx Surface Tr. Operating Auth., 40 AD3d 480 [2007]).

Alteri v. Benson
 

Calendar Date: February 15, 2008
Before: Cardona, P.J., Carpinello, Lahtinen, Malone Jr. and Kavanagh, JJ.

Harding Law Firm, Niskayuna (Lia B. Mitchell of counsel), for appellant.
Burke, Scolamiero, Mortati & Hurd, Albany (Thomas J. Reilly of counsel), for respondent.

MEMORANDUM AND ORDER

Carpinello, J.

Appeal from an order of the Supreme Court (Dawson, J.), entered February 26, 2007 in Essex County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action seeking damages for injuries she allegedly sustained to her neck, back and shoulder when the motor vehicle in which she was a passenger went off the road and flipped over. At issue is an order of Supreme Court granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)[FN1]. Upon our review of the record, we find that the motion was properly granted. Accordingly, we affirm.

In moving for summary judgment, defendant submitted, among other documents, plaintiff's deposition testimony, certain medical records and the report and affidavit of an orthopedic surgeon who conducted an independent medical examination of her and reviewed her medical history. During plaintiff's testimony, she detailed her numerous complaints since the accident, including neck, back, hip and shoulder pain. According to her, despite a substantial regimen of physical therapy, she experiences pain on a daily basis for which she takes ibuprofen and which limits her ability to perform various household and recreational activities. She acknowledged, however, that she has not missed one day of work as a nurse as a result of these injuries a position, we note, which entails a 40-minute daily commute each way.

Moreover, according to the report and affidavit of defendant's expert, his physical examination of plaintiff "was completely normal . . . in every respect." She exhibited complete symmetric range of motion of both shoulders and had good strength in her rotator cuffs. The extension of her spine was normal and she was able to reach down and touch her toes, walk on her toes and heals and perform a deep knee bend. Her straight leg test was "completely normal" and she also had a good range of motion in her hips and knees with no evidence of muscle atrophy. Furthermore, according to this expert, certain complaints during the examination had a psychological, rather than physical, basis.

It was further established by this expert that an MRI of plaintiff's lumbar spine revealed no fractures, sponylolisthesis or ligament injury. To the extent that objective findings of injury were revealed by the MRI, this expert opined that plaintiff "does not exhibit objective symptoms of injury relating to [such] findings." Likewise, while an MRI revealed that her cervical spine was within normal limits with the exception of "mild acquired spinal stenosis" due to a disc bulge, he opined that "plaintiff does not exhibit objective signs of injury from these objective findings as well." In short, this expert opined that none of plaintiff's complaints correlate with any objective examination findings and, therefore, it was his opinion that she sustained neither a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system (see n 1, supra). Defendant's submissions were sufficient to make a prima facie showing of entitlement to summary judgment (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Brandt-Miller v McArdle, 21 AD3d 1152, 1154 [2005]; John v Engel, 2 AD3d 1027, 1028 [2003]).

Further, plaintiff failed in her shifted burden of raising a triable issue of fact (see Toure v Avis Rent A Car Sys., supra). Even assuming that plaintiff submitted the requisite objective evidence of injury, neither of the two physicians who submitted an affirmation on her behalf quantified any alleged loss or limitation or provided a qualitative comparison of her condition to normal function (see id. at 350-351; Felton v Kelly, 44 AD3d 1217, 1218 [2007]; Pugh v DeSantis, 37 AD3d 1026, 1028-1029 [2007]; Brandt-Miller v McArdle, supra; Clements v Lasher, 15 AD3d 712, 713 [2005]; John v Engel, supra). This being the case, summary judgment in defendant's favor was in all respects appropriate.

Cardona, P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes


Footnote 1: We note that only two categories of serious injury remain at issue in this case, namely, significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member.

 

One Beacon Ins. Co. v French Institute Alliance Francais NYC


Sheps Law Group, P.C., Melville (Robert C. Sheps of counsel),
for appellant.
Hoey, King, Toker & Epstein, New York (Robert O. Pritchard,
Jr. of counsel), for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered January 10, 2007, which granted the motion of defendant French Institute Alliance Francais NYC (FIAF) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated against FIAF. Appeal from order, same court and Justice, entered April 24, 2007, which denied so much of plaintiff's motion insofar as it sought to renew, and granted its motion insofar as it sought to reargue, and upon reargument, adhered to the prior determination, unanimously dismissed, without costs, as academic in view of the foregoing.

Dooney & Burke was a tenant in a building owned by FIAF, which also occupied the upstairs premises, and its lease provided for a waiver of subrogation with respect to claims alleging damages to its premises. In January 2005 water was discharged from FIAF's premises into Dooney & Burke's, resulting in damage. Plaintiff, Dooney & Burke's insurer, reimbursed it for the loss, and commenced this subrogation action against FIAF, alleging that, as "an occupier" of the premises, it had been negligent in maintaining the heating and sprinkler systems and in supervising the contractors working in its space.

We disagree with the motion court's determination that the waiver of subrogation clause in the lease barred plaintiff's claim on the basis that the allegations of negligence emanated from the landlord-tenant relationship. Instead, we find that the record establishes that there are triable issues of fact with respect to whether the cause of Dooney and Burke's loss arose from a condition in FIAF's premises, or from a building-wide condition for which FIAF was responsible in its capacity as landlord (see Interested Underwriters at Lloyds v Ducor's, Inc., 103 AD2d 76 [1984], affd 65 NY2d 647 [1985]). The motion court inappropriately determined the factual issue on the record then before it, i.e., that the source of the problem was the building-wide heating system, and not the thermostat in the premises occupied by FIAF. Furthermore, plaintiff had expeditiously sought discovery on the issue, and its claimed need for such discovery to oppose the motion was genuine (cf. Moran v Regency Sav. Bank, F.S.B., 20 AD3d 305, 306 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Sparber v Manufacturer's Life Ins. Co.


Law Office of Erica Doran, Syosset (Erica Doran of counsel),
for appellant.
Kelley Drye & Warren LLP, New York (Philip D. Robben of
counsel), for Manufacturers Life Insurance Company (U.S.A.),
respondent.
Winget, Spadafora & Schwartzberg, LLP, New York (Steven
E. Mellen of counsel), for Robert W. Baird & Co., Inc. and
Gerald A. Klingman, respondents.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered February 7, 2007, which granted defendants' motions to dismiss the amended complaint, unanimously affirmed, with costs.

Plaintiff alleges that defendants insurance company, insurance brokerage company and insurance broker misrepresented to her decedent that the premiums on the subject insurance policy on the decedent's life, purchased in December 1989 and naming plaintiff and her sister as owner, would remain fixed throughout the decedent's life, and that the falsity of this representation first became known to the decedent as a result of a November 2002 notice of an increase in the premium, some 10 months before the decedent's commencement of the action in September 2003. Defendants argue that the action is barred by a 1998 class action judgment entered in a California federal district court action. Plaintiff responds that the class action involved only vanishing premium policies, i.e., policies with a fixed number of premium payments or fixed amount of premium, not policies like the one at issue here with lifetime fixed premiums, and that the action, therefore, is not barred under California's applicable "primary right" approach to res judicata (see Mycogen Corp. v Monsanto Co., 28 Cal 4th 888, 904 [2002]; Citizens for Open Access to Sand & Tide, Inc. v Seadrift Assn., 60 Cal App 4th 1053, 1065, 1067 [1st Dist 1998]). The argument lacks merit, regardless of whether the applicable law of res judicata is that of California, the federal courts (see Federated Dept. Stores, Inc. v Moitie, 452 US 394, 398 [1981]) or New York (see O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). The class action complaint sought redress for, inter alia, representations "that the Policies would provide . . . benefits . . . based on premium payments of a specified amount for the life of the insured." That allegation could only apply to policies, like plaintiff's, with premiums to be paid for the policy's life. In any event, as the motion court alternatively ruled, plaintiff's claims are time-barred. In the latter regard we would comment only that plaintiff's argument that the policy set forth only three conditions under which premiums could be raised is based on policy terms concerning the "Minimum Premium schedule" applicable only to the first three years of the policy. Other parts of the policy gave clear notice that it had a "Flexible Premium" that could, inter alia, increase with the age of the insured. As the action clearly lacks merit, plaintiff's request for leave to replead was properly denied (see Davis & Davis v Morson, 286 AD2d 584, 585 [2001]). We have considered plaintiff's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 8, 2008

Lunkins v. Toure


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Robert A. Flaster, P.C., New York (Robert A. Flaster of counsel), for respondent.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about September 21, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

The affirmed reports of defendants' orthopedist and neurologist, detailing the objective tests performed on plaintiff, finding that plaintiff had full range of motion in her cervical, thoracic and lumbar spine and shoulder, and concluding that she had recovered from the sprain injuries to her spine and shoulder established defendants' prima facie entitlement to summary judgment (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]). Defendants also submitted an affirmed report from their radiologist who found no abnormalities as a result of the accident (see Lloyd v Green, 45 AD3d 373 [2007]).

Plaintiff's opposition failed to raise a triable issue of fact as to whether she sustained a serious injury. Her deposition testimony revealed that she was involved in a second motor vehicle accident more than one year after the subject accident, in which she injured her neck, back and shoulder. The conclusion of plaintiff's treating orthopedist regarding the range of motion limitations found in plaintiff's neck, back and right shoulder two years after the subject accident, failed to adequately address the possibility that plaintiff's limitations were caused by the second accident (see Lopez v Simpson, 39 AD3d 420, 421 [2007]; see also Montgomery v Pena, 19 AD3d 288, 289-290 [2005]). Plaintiff also failed to raise a triable issue of fact in the form of competent objective evidence substantiating her 90/180-day claim (see Nelson v Distant, 308 AD2d 338, 340 [2003]).

We have considered plaintiff's remaining arguments and find them unavailing.  THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Baksh v. US Tow, Inc.


Jonathan D. Mandell, Lynbrook, N.Y., for appellant.
Kral, Clekin, Redmond, Ryan, Perry & Girvan, LLP, Mineola,
N.Y. (John J. Ullrich of counsel), for
respondents US Tow, Inc., and Colin E. Arthur.
Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn
Venterina of counsel), for respondents MTA
Long Island Bus, a/k/a Metropolitan
Suburban Bus Authority, and Juditht A. Herrera.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, etc., the plaintiff Tyeisha Roker appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), entered January 26, 2007, as granted the motion of the defendants US Tow, Inc., and Colin E. Arthur for summary judgment dismissing the complaint insofar as asserted by her against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and upon, in effect, searching the record, awarded summary judgment dismissing the complaint insofar as asserted by her against the defendants MTA Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, and Judith A. Herrera on the same ground.

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

On appeal, the plaintiff Tyeisha Roker (hereinafter the appellant) does not challenge the Supreme Court's determination that the defendants US Tow, Inc., and Colin E. Arthur made a prima facie showing that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Contrary to the appellant's contention, her submissions in opposition to the motion were insufficient to raise a triable issue of fact.

Accordingly, the motion of the defendants US Tow, Inc., and Colin E. Arthur, for summary judgment dismissing the complaint insofar as asserted by the appellant against them was properly granted, and upon, in effect, searching the record, the Supreme Court properly awarded summary judgment to the defendants MTA Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, and Judith A. Herrera, dismissing the complaint insofar as asserted by the appellant against them (see Howell v Reupke, 16 AD3d 377; Kassim v City of New York, 298 AD2d 431, 432).
RIVERA, J.P., LIFSON, RITTER and CARNI, JJ., concur.

McGregor v. Avellaneda


Birbrower Law Firm, P.C., (Marie R. Hodukavich, Peekskill, N.Y. of counsel), for appellant.
Cavallo & Cavallo, Bronx, N.Y. (Nesci Keane Piekarski Keogh
& Corrigan [Jason M. Bernheimer] of counsel), for defendants third-party plaintiffs-respondents.
Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Julie M. Sherwood of counsel),                      for third-party defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Putnam County (O'Rourke, J.), dated March 13, 2007, which granted the defendant's motion and that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) an order of the same court dated May 30, 2007, which denied her motion for leave to reargue.

ORDERED that the order dated March 13, 2007, is reversed, on the law, the defendants' motion for summary judgment dismissing the complaint and that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint are denied; and it is further,

ORDERED that the appeal from the order dated May 30, 2007, is dismissed, as no appeal lies from an order denying reargument, and, in any event, the appeal has been rendered academic in light of our determination of the appeal from the order dated March 13, 2007; and it is further,

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

The defendants and the third-party defendant (hereinafter the respondents) failed on their separate motions to satisfy their initial prima facie burdens 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, 956-957). In support of their motions, the respondents relied on the affirmed medical report of the third-party defendant's examining neurologist, Dr. Rene Elkin. In Dr. Elkin's report, which was based upon an examination that occurred more than three years after the subject accident, Dr. Elkin noted significant range of motion limitations in the plaintiff's left shoulder (see Zamaniyan v Vrabeck, 41 AD3d 472; Sullivan v Johnson, 40 AD3d 624; Smith v Delcore, 29 AD3d 890; Sano v Gorelick, 24 AD3d 747; Spohler v Khan, 14 AD3d 693; Omar v Bello, 13 AD3d 430; Scotti v Boutureira, 8 AD3d 652). Since the respondents failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to consider 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).
RIVERA, J.P., LIFSON, MILLER, CARNI and ENG, JJ., concur.