Coverage Pointers - Volume IX, No. 22

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Dear Coverage Pointers Subscribers:

 

A special wish to my partners and associates:  Happy 31st Anniversary Hurwitz & Fine.

 

This Issue

Who can forget the 1977 Xerox Super Bowl commercial:  Brother Dominic finishes duplicating an old manuscript, only to learn that the head monk needs 500 more sets. Dominic heads through a secret doorway to a modern-day copy shop where the Xerox 9200 (which can copy at an amazing rate of two pages per second!) does the job for him. He returns to the monastery and delivers the sets in no time. "It's a miracle," the father says. Brother Dominic smirks skyward.

 

I thought of that ad as we prepared to put this week's 70-page issue of Coverage Pointers to bed and sent it out the door. We've calculated that if we printed out the issue and before we send one copy to each of our subscribers, we placed the printed pages on the ground end-to-end, the issue would stretch from our office in Buffalo and beyond our office in Niagara Falls.  The pages would measure 18.05 miles in length. 

 

High Court Gets it Right 

Praise to the Court of Appeals for righting a wrong.  In late May 2007, the Appellate Division rendered what we described then as an awful decision with respect to additional insured protection.  Basically, the First Department had held that where additional insured status arose out of a named insured's operations, that coverage would be afforded even where the only connection between the named insured and the accident was the location of where the named insured once worked.  Today, the Court of Appeals reversed the First Department in the Worth decision holding that there has to be some causal link between the named insured's work and the accident for the additional insured coverage to be afforded to another.  You'll find a thorough discussion in today's issue, attached.

Congratulations Ann Evanko
Not all of you know my partner, law school classmate and dear friend Ann Evanko.  If you don't, I hope you get the opportunity to work with her. Our firm is so proud of Ann on so many levels.  Just this week, Ann was selected, from a dozen outstanding finalists, to receive the Athena International Award.

The award recognizes an individual in the Buffalo-Niagara Region who demonstrates support for the goals of women professionals and provides significant and selfless assistance on their behalf.  Well deserved, Ann.

Tip of the Week:  Do Not Send Reservation of Rights Letter in New York in Bodily Injury and Wrongful Death Cases where the Statute Requires Prompt Disclaimer.  Substitute Partial or Complete Disclaimers
For newer subscribers and particularly those who only handle NY insureds on occasion, let me take a moment to remind you that you should think twice, and then think again, if you are about to send out the same kind of Reservation of Rights letter that you regularly send in other jurisdictions.  New York courts simply don't like them and barely respect them.  They are not a substitute for a disclaimer letter where there is a statutory duty to disclaim promptly. In most New York bodily injury and wrongful cases, a reservation of right letter is virtually worthless.  If you want support for this proposition, simply review these recent judicial pronouncements carefully and remember them:

·        Any right GAN had to disclaim on the ground that it did not receive timely notice of the assault was lost when it did not give either NYAT or Cabrera notice of disclaimer on such ground as soon as reasonably possible (citations omitted). That GAN had such ground to disclaim was readily apparent as soon as it learned of Cabrera's lawsuit against NYAT commenced two and half years earlier .yet, GAN never served a notice of disclaimer. Instead, it served a reservation of rights letter on NYAT, which has no relevance to the question of timely notice of disclaimer (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029, 389 N.E.2d 1061, 416 N.Y.S.2d 539 [1979]) .
NYAT Operating Corp. v. GAN Nat'l Ins. Co., 46 A.D.3d 287 (1st Dep't 2007)

·        New York Central's obligation to disclaim arose when it learned in August 2002 that Hildreth had settled her action against Robert Barry without its consent (citations omitted) New York Central never disclaimed. New York Central's reservation of rights letter dated November 17, 2003, was not a disclaimer.
New York Cent. Mut. Fire Ins. Co. v. Hildreth, 40 A.D.3d 602 (2d Dep't 2007)

·        Insurance Law § 3420 (d) requires an insurer to provide a written disclaimer "as soon as is reasonably possible." Reasonableness of delay is measured from the time when the insurer "has sufficient knowledge of facts entitling it to disclaim, or knows that it will disclaim coverage" (First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 66, 801 NE2d 835, 769 NYS2d 459 [2003]). The insurer bears the burden of justifying any delay (id. at 69). Contrary to the plaintiff's contention, the obligation to provide prompt notice under Insurance Law § 3420 (d) is triggered when the insurer has a reasonable basis upon which to disclaim coverage, and cannot be delayed indefinitely until all issues of fact regarding the insurer's coverage obligations have been resolved. When in doubt, an insurer should issue a prompt disclaimer and then seek a declaratory judgment concerning its duty to defend or indemnify, rather than seeking such a judgment in lieu of issuing a disclaimer, as the plaintiff has done here ...

On this record, we find that the plaintiff had a reasonable basis upon which to disclaim coverage on or about March 2002, when it was first informed by Newbridge of the underlying action. Its "reservation of rights" letter, however, issued on or about April 12, 2002, did not constitute an effective disclaimer for purposes of Insurance Law § 3420 (d).
Republic Franklin Ins. Co. v. Pistilli, 16 A.D.3d 477 (2d Dep't 2005)

If you have any questions about the approach, contact us.

Earl's Pearls 

Earl Cantwell's column discusses electronic store information and safe harbors.  Happy sailing.

 

So I Heard  

Couldn't resist passing these along:

 

  • I wondered why the baseball was getting bigger. Then it hit me.
  • Police were called to a day care where a three year old was resisting a rest.
  • Did you hear about the guy whose whole left side was cut off?  He's all right now.
  • When fish are in schools, they sometimes take debate.
  • The short fortune teller who escaped from prison was a small medium at large.
  • A thief who stole a calendar got 12 months.
  • The dead batteries were given out free of charge.
  • A will is a dead giveaway. 
  • If you don't pay your exorcist you can get repossessed.
  • The guy who fell onto an upholstery machine was fully recovered.
  • He had a photographic memory which was never developed.
  • When she saw her first strands of gray hair, she thought she'd dye.   

How Long is Long? 

The Colorado Rockies beat the San Diego Padres the other day, with a run in the 22nd inning (in a game that saw a 7th, 14th and 21st inning stretch) - the longest game in the majors in 15 years. Of course, we then had to know about the longest, in innings and time, professional baseball game in history.

 

The Pawtucket Red Sox and Rochester Red Wings, two teams from the Triple-A International League, played the longest game in professional baseball history in 1981 at Pawtucket's McCoy Stadium.

 

The game began on Saturday, April 18, 1981, and continued through the night and into Easter morning before finally being suspended. Although most leagues have a curfew rule that would have suspended the game, the rule book that the home-plate umpire had that night did not contain one. So the teams continued playing until the president of the league suspended the game at 4:09 a.m., at the end of the 32nd inning.  The game resumed on the evening of Tuesday, June 23, the next time the Red Wings were in town. A sellout crowd and news media from around the world were on hand, partly because the major leagues were on strike at the time. On that evening, it took just one inning and 18 minutes to settle the game, with Pawtucket's Dave Koza driving in Marty Barrett for the winning run in the bottom of the 33rd on the 882nd pitch of the game.  We tried to interview Mr. Koza for this story, but our e-mails went unanswered.  He's a VP for Information Services at a company in Rockford, IL. 

 

Dave never made it to the majors. Others in the game did. Call Ripkin, Jr. played for Pawtucket that game and tied a professional baseball record for most times at the plate in a game with 15.  Wade Boggs went 4 for 12 for the Red Wings.

 

From Audrey Seeley, Queen of No Fault:

We are continuing to see cases where the plaintiff's summary judgment motion is denied for failure to submit the appropriate affidavit attaching business records.  We are seeing some new cases denying the plaintiff's summary judgment motion as the insurer's opposition established that the denial of claim was timely mailed and the peer review raised an issue of fact as to whether the treatment was medically necessary.  Is the pendulum swinging back??

 

Finally, there is an interesting case regarding venue of an arbitration that some of you may find interesting.  I recently went through a similar issue where the applicant, medical provider, the patient, the accident, and the treatment all occurred in Buffalo.  Yet, the applicant decided to retain downstate counsel to represent it in the arbitration.  AAA placed the case downstate based upon the counsel's location.  I wish I would have had this decision in hand while making the multitude of phone calls appealing and arguing that the case was in the wrong venue.  Well now we have a case to point to!  By the way, venue was moved back to Buffalo in my file.  Persistence does pay.

 

In today's issue, we find the following eclectic decisions of interest:

  • Court of Appeals Reinstates Reason with Respect to Additional Insured Endorsements.  Where Coverage Arises "Only with Respect to the Named Insured's Operations" there Must be Some Connection between the Operations and the Injury for Coverage to Exist.  Thousands Return
  • Police Report Tossed Out, Along with Proof of Identity of Other Vehicle in Accident; Uninsured Motorist Proceeding Allowed to Proceed
  • Uninsured Motorist Coverage Traded for a Blue Plate Special
  • Who is a Customer Under a Garage Policy that Eliminates Coverage for Customers with Sufficient Insurance?
  • Purists Rejoice!  Court Determines Obligations of General Contractor and Subcontractor to Defend by Looking at Policy, Not Promises in Contract between Parties
  • Excuses, Excuses, Excuses
  • Wrongful Eviction, Under "Personal and Advertising Injury Coverage, Only Applies to Eviction of Natural Person, not Organization
  • Hoos the Car's Insurer?  Not Him or Anyone Else
  • A Rose by Any Other Name Would Smell as Sweet; An Assault is Not an Occurrence
  • May the Force Be With You, Yoda.  Questions of Fact Preclude Determination of Insured Status and Late Disclaimer
  • In Direct Action, Question of Fact Exists on Whether Alleged Insured had Policy 

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

Mark Starosielec
[email protected]

 

  • Burden Fails to Shift Because Defendants Did Not Establish Prima Facie Case
  • Chiropractor's Reports Must Be in Affidavit Form
  • Reversed: Lots of Holes in Plaintiff's Medical Submissions Leads to SJ
  • "Because I Said So" is Not Enough to Qualify as a Serious Injury Under 90/180 Category
  • Court: Plaintiff Doc's Numbers were Good, But Timing was Off
  • SJ Reversed as Plaintiff Submitted Affidavit of Chiropractor Who Treated Him Pre-MVA
  • No Directed Verdict When Conflicting Evidence is Presented on Issue of Serious Injury
  • SJ Granted as Plaintiff's Medical Records Are Inconsistent with Alleged Injuries
  • The More, NOT Always the Merrier: Despite Plenty of Doctors, P Fails to Survive SJ
  • Defendants' Failure to Shift Burden Renders Plaintiff's Opposition Material Moot
  • Plaintiff's Failure to Explain Termination of Medical Treatment Leads to SJ
  • Plaintiff's Return to Normal Range of Motion 8 Days After MVA Leads to SJ
  • Quick and to the Point: Plaintiff's Treating Neurologist Raised a Triable Issue of Fact
  • Litany of Problems Prevents Plaintiff from Raising a Triable Issue of Fact
  • Live By the ROM, Die by the ROM: P Uses D's Doc's Findings to Survive SJ
  • How Not to Raise a Triable Issue of Fact: Let's Count the Ways
  • Short and Sweet: Miss Just One Day of Work, then No Serious Injury
  • Reversed: SJ Granted on Appeal as Plaintiff Fails to Raise a Triable Issue of Fact
  • Court to Counsel: Read VBOP & Address the SI Categories or Suffer the Consequences 

AUDREY'S ANGLES ON NO-FAULT
Audrey Seeley

[email protected] 

Litigation

 

  • An Employee Affidavit with Knowledge of Office Practice on Denials Sufficient to Defeat Plaintiff's Motion.
  • We Cannot Dismiss Something That Never Existed
  • Arbitration Location Cannot be More Than 100 Miles From Insured's Residence
  • Insurer Establishes Timely Issuance of Denial and Peer Review Raises Issue of Fact Precluding Summary Judgment
  • Demonstration of Timely Denial = Meritorious Defense = Default Judgment Vacated
  • Insurer Establishes Timely Issuance of Denial and Peer Review Raises Issue of Fact Precluding Summary Judgment
  • Plaintiff's Motion Denied for Failure to Submit Business Records in Admissible Form 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

  • Waiver Clause Meant what it Said:  Plaintiff's Claim Dismissed by Operation of a Waiver of Subrogation Clause
  • Spoliation Charge Denied where Sprinkler Company Ignored Three Requests to Inspect Allegedly Defective Sprinkler
  • Workers' Compensation Law § 11 No Help in Opposing a Claim for Contractual Indemnification
  • Failure to Comply with Discovery Orders Resulted in Loss of All Defenses
  • Owner Cannot Escape Liability under Labor Law § 240(1) by Inserting a Prior Consent Clause in the Lease Agreement

Goodness, that's a lot of stuff!  Happy reading.

 

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

 

5/1/08              Worth Construction Co., Inc. v, Admiral Insurance Company

New York State Court of Appeals
Court of Appeals Reinstates Reason with Respect to Additional Insured Endorsements.  Where Coverage Arises “Only with Respect to the Named Insured’s Operations” there Must be Some Connection Between the Operations and the Injury for Coverage to Exist.
  Thousands Return

Eleven months ago, to the day, we reported on a First Department decision in this case that thankfully has been reversed by the Court of Appeals.  At that time the headline read:


Split Court Takes Additional Insured Endorsement to its Illogical Extreme; GC Entitled to Additional Insured Protection from Carrier for Named Insured Subcontractor Found Not Responsible for Accident.  Dissenting Judges Notes Majority Creates “Unseemly Spectacle.” Appeal to Court of Appeals Permitted Because of Two Judge Dissent.  Thousands Flee. 

The Editor’s Note read:

This is a terrible decision.  Plain and simple.  Not that I have a strong view on it or anything.

 

 

We are delighted to report that the thousands who then fled can now return.  Let us review the facts as we reported them back then:

Worth Construction (Worth) was a GC on a construction site.  Hackensack Steel was a subcontractor insured by Admiral.  Worth had another subcontract with Pacific Steel, insured by Farm Family.  Worth had been hired to build a staircase.  Both Admiral and Farm Family had additional insured endorsements protecting Worth for liability arising of their respective insured’s operations and requiring notice of the claim as soon as practicable.  The injured worker was employed by a sub-subcontractor of Hackensack and claimed injury from slipping on the stairs built by Pacific but Worth acknowledged that no negligence on Pacific’s part contributed to the accident.  As a result, Pacific was dismissed from the lawsuit.

Again, the action against the Farm Family insured, Pacific, was dismissed with a finding of no negligence on the part of Pacific.  The Farm Family policy provided that Worth was an additional insured for work or operations performed by Pacific, and the majority noted that that 21.b of the policy defined Pacific's work to include: "Materials, parts or equipment furnished in connection with such work or operations." Given this definition of Pacific's work, it is the court concluded that it was immaterial, for purposes of deciding additional insured coverage, whether Pacific had completed its installation of the stairs, whether Pacific's installation of the stairs was negligent, or whether Pacific or a contractor in privity with it was the injured worker's employer. It is sufficient that the injury was sustained on the stairs.

The Appellate Division, with a finding of NO NEGLIGENCE on the part of the named insured, the additional insured still received coverage because the accident occurred on a staircase provided by the named insured. The dissenting judges at the Appellate Division and now the majority at the Court of Appeals disagreed.

Today, the Court of Appeals reversed the First Department’s order holding that the mere coincidence of the accident happening in a location where the insured worked does not mean that the work arose out of the insured’s work.

The high court noted that coverage arose "only with respect to liability arising out of [the named insured’s  operations." The phrase "arising out of" has been interpreted by this Court to "'mean originating from, incident to, or having connection with'" and requires only that there be some causal relationship between the injury and the risk for which coverage is provided.  

The absence of negligence, by itself, is insufficient to establish that an accident did not "arise out of" an insured's operations but the focus must be on the general nature of the operation in the course of which the injury was sustained.

Here, it is evident that the general nature of Pacific's operations involved the installation of a staircase and handrails. Another company was responsible for the fireproofing material. At the time of the accident, Pacific was not on the jobsite, having completed construction of the stairs, and was awaiting word from Worth before returning to affix the handrails. The allegation in the complaint that the stairway was negligently constructed was the only basis for asserting any significant connection between Pacific's work and the accident but Worth eventually conceded that it had no claim of negligence against Pacific and only that the staircase was merely the situs of the accident. Therefore, it could no longer be argued that there was any connection between Murphy's accident and the risk for which coverage was intended. There must be a causal link, not a mere coincidence of location.

4/29/08            In the Matter of Phoenix Insurance Company v. Golanek

Appellate Division, Second Department

Police Report Tossed Out, Along with Proof of Identity of Other Vehicle in Accident; Uninsured Motorist Proceeding Allowed to Proceed
On evidentiary grounds, the police report which carried identity of vehicle that may have struck claimant’s car was ruled inadmissible.  The police report had information provided by a witness as to a license plate of a care apparently involved in the accident.  Court found that the report was inadmissible hearsay without any exceptions that would allow that information to be considered by the Court.  Since, therefore, there was no admissible proof that uninsured motorist claimant was involved in accident with insured car, application to stay UM arbitration denied/

 

4/25/08            In re American Transit Insurance Company v. Wason

Appellate Division, First Department
Uninsured Motorist Coverage Traded for a Blue Plate Special
Wason filed for uninsured motorist benefits and her carrier moved for a stay, alleging that she was involved in an accident with an insured vehicle, not a hit-and-run. Wason testified at a framed-issue hearing that the taxi in which she was a passenger was involved in an accident with a dark green, four-door vehicle, which fled the scene. Upon exiting the taxi, Wason and the taxi driver discovered a bumper with a license plate attached to it. The bumper was placed in the trunk of the taxi and taken to a nearby police precinct, and was subsequently left in the possession of the taxi driver. The plate was registered to Palache, who while acknowledging that she owned a dark green, four-door vehicle, maintained that her vehicle was not involved in the accident.  The plate – and the testimony of the witness -- provided enough proof for the trial court and the appellate court to hold that the insured Palache vehicle was in the accident so that UM benefits would not be available.

 

4/25/08            Graphic Arts Mutual Insurance Company v. Russell

Appellate Division, Fourth Department

Who is a Customer Under a Garage Policy that Eliminates Coverage for Customers with Sufficient Insurance?

Graphic Arts sought to avoid coverage for an auto accident.  Its insured was a car dealership, Baldo.  The permissive user of the car, however, was a customer of a consultant Niagara Car and he had asked Niagara to find a late-model Cadillac or Lexus for him to purchase.  The consultant secured the car from Baldo and the consultant provided the dealer plates for the car, not Baldo. Driver was involved in an accident during a test-drive.  The Baldo policy with Graphic Arts excluded “customers with sufficient coverage.” The Appellate Division found that the driver was not a customer of Baldo but instead a customer of Niagara, so the he was not excluded from the definition of permissive users who were entitled to Graphic’s coverage.

 

4/25/08            B.F. Yenny v. OneBeacon Insurance Company

Appellate Division, Fourth Department
Purists Rejoice!  Court Determines Obligations of General Contractor and Subcontractor to Defend by Looking at Policy, Not Promises in Contract between Parties
Yenny was the general contractor on the job.  It commenced an action seeking judgment that OneBeacon was obligated to defend and indemnify it in a personal injury lawsuit.  Yenn had contracted with Syracuse Mosaic, the injured party’s employer,  to perform tile work. Syracuse had agreed to name Yenny as an additional insured and the OneBeacon policy did that.

OneBeacon commenced a third-party action alleging that Selective Way Insurance Company, Yenny’s carrier is obligated to defend and indemnify plaintiff in the underlying action pursuant to the commercial general liability policy issued by Selective to plaintiff, and seeking judgment declaring that Selective's coverage obligation is co-primary to that of OneBeacon.

The Fourth Department conducted, as they usually do in these cases, the proper analysis.  The Court looked to the “other insurance clauses” which had matching proration clauses and found that each had a duty to defend.  The court found that the contractual promise to provide primacy does not alter the insurance policies.

Editor’s Note:  Regular readers of this newsletter know that we coverage purists agree with the Court’s analysis.  The policies speak for themselves.  Many ISO policies now provide – in the “other insurance clauses” -- that IF the contract between the parties calls for additional insured status to be provided, let’s say, by a subcontractor, the GC’s policy will be excess over the policy provided by the sub.  There was no such discussion in this case, so we presume that the policy provided by the GC did not contain such a provision.  Unusual but not unheard of.  We discussed this same concept in our April 18, 2008 Coverage Pointers for those who may have missed it.

4/22/08            North Country Insurance Company v. Jandreau
Appellate Division, Third Department
Excuses, Excuses, Excuses
Why didn’t the insured give notice of the accident when it occurred?  Here, defendant explained that he did not contact plaintiff because the injured worker was working for the subcontractor and under the subcontractor's control and supervision at the time of the accident. The subcontractor had provided proof of liability and workers' compensation coverage prior to commencing work, and informed defendant on the day of the accident that it was submitting a claim to its insurer. The insured did not hear from the injured worker or anyone on his behalf from the date of the accident until defendant was served with the pleadings in the underlying action. He further believed that there was no liability because Dominique was acting contrary to his own advice, and presumably that of the worker’s supervisor, that no one go on the roof. Despite owning a construction company for 12 years, defendant had never been sued for a construction site injury and was thus unfamiliar with the nuances of liability. Court found that reasonableness of excuse was question of fact.
Editor’s Note:  While this Editor has little sympathy for late notices, we think that the court’s determination that the reasonableness of the excuse was a question of fact was the correct one.

 

4/22/08            47 Mamaroneck Avenue Corporation v. Hartford Fire Insurance Company

Appellate Division, Second Department

Wrongful Eviction, Under “Personal and Advertising Injury Coverage, Only Applies to Eviction of Natural Person, not Organization
We always appreciate creativity and cleverness.  Wrongful eviction complaint against insured but entity evicted (or whose property rights were allegedly interfered) was a business.  The court held that under personal and advertising injury coverage, the policy distinguishes between a natural person and an organization.  It concluded that wrongful eviction is only covered under that portion of the policy if the person being evicted is flesh and blood, rather than corporate.

 

Since the claim was for wrongful eviction of a business and since this claim did not fall within the grant of coverage, no disclaimer was necessary.  Even if a disclaimer had been necessary, it need not have been sent to the injured party since the requirements of Insurance Law Section 3420(d) – requiring disclaimers be sent to injured parties -- only apply to bodily injury and wrongful death cases.

 

4/22/08            In the Matter of Continental Insurance Company v. Biondo

Appellate Division, Second Department
Hoos the Car’s Insurer?  Not Him or Anyone Else.

This case comes up in context of an application to stay an uninsured motorist claim.  Continental attempted to establish that car was transferred to either a corporate insured or to the insured’s friend, Mr. Hoos.  However, the proof was insufficient to establish either. Moreover, while Continental could have shifted the burden of establishing coverage to the insurer listed on the police report, there was no insurer so listed.  Accordingly, Continental was unable to establish that the vehicle was insured, so it would be considered uninsured.

 

4/22/08            Desir v. Nationwide Mutual Fire Insurance Company
Appellate Division, Second Department

A Rose by Any Other Name Would Smell as Sweet; An Assault is Not an Occurrence
We always love it when courts look beyond the words to see reality.  Here, the allegations of the complaint were of an assault.  The policy only covered occurrences.  Accordingly, the court found no duty on the part of the carrier to defend.  Further, the inclusion in the underlying complaint of causes of action sounding in negligence and alleging carelessness does not alter the fact that "the operative act giving rise to any recovery is the assault."  The court cited to the Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 352 case in support of that proposition.  We note that the Mount Vernon case dealt with an assault exclusion.  It appears there was an “intentional act” exclusion (almost as good).
Editor’s Note:  We found the companion tort case reported and there had been verdict for $200,000 for past pain and suffering, $550,000 for future pain and suffering, and $25,000 in punitive damages.  Sounds like a pretty vicious assault.  Oh yea, there was also an assault conviction.

 

4/22/08            Yoda, LLC v. National Union Fire Insurance Company of Pittsburgh, Pa.
Appellate Division, First Department
May the Force be With You, Yoda.  Questions of Fact Preclude Determination of Insured Status and Late Disclaimer
It was unclear to the court whether or not two parties were additional insureds under an umbrella policy issued by National Union, even though they were not listed as additional insureds and those questions preclude a summary determination of coverage under that policy.  Likewise, it was not clear whether National Union’s delay in disclaiming, as it watched the underlying Labor Law litigation proceed, was timely.
Editor’s Note: 
In reviewing the lower court decision in the case, available here, there was an argument made by National Union that the requirements of prompt disclaimer under Insurance Law Section 3420(d) did not apply to this was really a fight between and among carriers for primacy of defense.  The lower court rejected that argument because the insurer seeking to compel National Union’s assumption of defense was doing so on behalf of its insured.  The lower court decision is worth a read, even with the Appellate Division having modified the rulings below.

 

4/15/08            Marsala v Travelers Indemnity Company
Appellate Division, Second Department

In Direct Action, Question of Fact Exists on Whether Alleged Insured had Policy
Marsala took a default judgment against the alleged insurer of a truck.  Travelers had earlier denied coverage to the trucking company, claiming that it did not issue a policy to that company.  Now, Marsala brings a direct action against Travelers, presents policy to the court and seeks summary judgment.  Travelers cross-moved for summary judgment.  Both motions are denied and the matter sent for a trial.  The motion court determined that Travelers failed to establish its entitlement to summary judgment by conducting an "exhaustive search" of the tortfeasors' names in the company's records.

Editor’s Note:    From the supporting citation,  Marsala apparently established a prima facie case of insurance coverage by the submission of the police report as well as the DMV records.  When that occurs, the burden of proof shifts to the carrier to demonstrate that the vehicle was never insured or that the policy was cancelled.

 

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

Mark Starosielec
[email protected]

 

5/1/08              Lamb v. Rajinder

Appellate Division, First Department

Burden Fails to Shift Because Defendants Did Not Establish Prima Facie Case

Defendants were unsuccessful in their appeal of a lower court order which had denied its motion for summary judgment dismissing the complaint. Defendants failed to meet their initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury. The affirmed report of defendants’ examining neurologist failed to set forth the objective tests performed supporting his claims that there was no limitation of range of motion. Since defendants’ failure to meet their initial burden of establishing a prima facie case, it is unnecessary to consider plaintiff’s opposition to the motion.

 

4/29/08            Perdomo v. Scott

Appellate Division, Second Department

Chiropractor’s Reports Must Be in Affidavit Form

CPLR 2106 assisted defendants in their successful appeal of a lower court order which had denied its summary judgment motion. The defendants met their prima facie burden. In opposition, plaintiffs failed to raise a triable issue of fact. They relied upon medical reports from their treating chiropractor. However, those reports were not competent evidence because they were not in affidavit. Further, they also relied upon affirmed MRI reports of their lumbar and cervical spine. While the radiologists who authored those reports observed bulging discs, the mere existence of a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.

 

4/29/08            Cornelius v. Cintas Corp.

Appellate Division, Second Department

Reversed: Lots of Holes in Plaintiff’s Medical Submissions Leads to SJ

The Appellate Division reversed a lower court order which had denied defendants' motion for summary judgment. On appeal, it was held the defendants met their prima facie burden. In opposition, plaintiff failed to raise a triable issue of fact.

 

The submissions of Leon Bernstein, plaintiff’s treating orthopedic surgeon, were insufficient to raise a triable issue of fact. Bernstein's projections of permanent injuries and limitations had no probative value in the absence of a recent examination. Furthermore, although Bernstein's report provided range of motion findings, he failed to compare any of these findings to what is normal. The "updated narrative report" of Aron Goldman, one of plaintiff's treating physicians, was insufficient too. This medical report merely contained conclusory allegations tailored to meet statutory requirements. Moreover, nobody adequately explained the nearly 1.5 year gap in treatment.

 

4/29/08            Prestol v. McKissock

Appellate Division, First Department

“Because I Said So” is Not Enough to Qualify as a Serious Injury Under 90/180 Category

Order which denied defendant’s motion for summary judgment dismissing the complaint was unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiff’s claim that she sustained a medically determined injury of a non-permanent nature that prevented her from performing substantially all of her usual and customary daily activities for 90 of the 180 days immediately following the accident. The only evidence as to plaintiff's claim of injury in the 90/180 period is her own deposition testimony that she was confined to bed and home and unable to work for approximately two months, i.e., 60 days (see Furrs v Griffith, 43 AD3d 389 [2007]).

 

4/25/08            Beaton v. Jones

Appellate Division, Fourth Department

Court: Plaintiff Doc’s Numbers were Good, But Timing was Off

Here, plaintiff unsuccessfully appealed a lower court order which granted defendant’s motion for summary judgment. While opposing the motion, plaintiff’s doctor stated there was a 75% loss of ROM of his cervical spine, but examination was done three years after the accident. Here, defendant met his burden that plaintiff did not sustain a significant limitation of use or permanent consequential limitation of use. In support of his motion, defendant submitted, inter alia, certified copies of plaintiff’s emergency room records and the affirmations of two medical experts, one of whom examined plaintiff on behalf of defendant. Defendant thereby established that plaintiff sustained only a mild injury.

In opposition, plaintiff submitted the affirmation of his treating neurosurgeon, who opined that plaintiff sustained a head injury, loss of range of motion in the cervical spine, post-concussive syndrome, whiplash disorder and a C5-6 herniated disc. That neurosurgeon did not, however, provide a numeric percentage of plaintiff’s loss of range of motion. Plaintiff also submitted the affirmation of a neurosurgeon who examined plaintiff at the request of his attorney. That neurosurgeon stated that his physical examination of plaintiff demonstrated that plaintiff had sustained approximately 75% loss of range of motion of the extension of his cervical spine. While an expert's designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury, here the neurosurgeon examined plaintiff more than three years after the accident and did not relate the loss of extension to the herniated disc or any other objective finding nor did he explain the absence of any such findings of restrictions in neck motion for 2½ years before his exam.

04/25/08          Kneeppel v. Casem

Appellate Division, Fourth Department

SJ Reversed as Plaintiff Submitted Affidavit of Chiropractor Who Treated Him Pre-MVA

The order granting summary judgment was unanimously modified and the complaint against defendants was reinstated with respect to the permanent consequential limitation of use of a body organ or member category of serious injury. Defendants met their initial burden by submitting evidence establishing that plaintiff's alleged injuries sustained in the accident were preexisting. Plaintiffs raised an issue of fact by submitting the affidavit of plaintiff’s treating chiropractor sworn to in October 2006, in which the chiropractor stated that he began treating plaintiff in 1996. The chiropractor set forth the normal range of cervical movement and compared it to plaintiff’s range of cervical movement in 1996 and again in 2001, approximately one week after the accident. According to the chiropractor, the extension of plaintiff's cervical spine "had decreased significantly" following the accident.

 

4/25/08            Bennett v. Muniz

Appellate Division, Fourth Department

No Directed Verdict When Conflicting Evidence is Presented on Issue of Serious Injury

A judgment entered after trial awarding plaintiff damages in the amount of $285,000, was unanimously reversed as plaintiff's motion for a directed verdict should have been denied in part because there was conflicting evidence presented regarding plaintiff’s injuries. The Appellate Division held the verdict is to be set aside and a new trial granted on the issues of serious injury, causation and damages.

The lower court erred in granting plaintiff's motion for a directed verdict on the issue of serious injury based upon its determination that the injury to plaintiff’s ankle constituted a significant limitation of use and a permanent consequential limitation of use. The Court of Appeals has written that “whether there has been a significant' limitation of use of a body function or system . . . can . . . be a complex, fact-laden determination” (Pommells v Perez, 4 NY3d 566, 571). Here, the parties presented conflicting evidence with respect to, the degree of permanent loss to plaintiff’s range of ankle motion, and as such there is a triable issue of fact regarding serious injury.

4/24/08            Cartha v. Quin

Appellate Division, First Department

SJ Granted as Plaintiff’s Medical Records Are Inconsistent with Alleged Injuries

The Appellate Division reversed a lower court order which denied defendants’ motion for summary judgment as plaintiff’s medical reports did not correlate the range-of-motion measurements therein to a norm. Further, they did not show how the alleged injuries to plaintiff’s back and arm resulted in significant limitations in their use. Although plaintiff’s elbow required surgery, which was performed eight months after the accident, and he apparently missed work as a result, the record establishes that the condition was corrected by the surgery. Nor does plaintiff adduce evidence of any substantial interference with his usual and customary daily activities for 90 of the first 180 days following the accident. He returned to work immediately after the accident, and his surgery, followed by his absence from work, did not fall within 90/180 time frame.

 

4/22/08            Scotto v. Suh

Appellate Division, Second Department

The More, NOT Always the Merrier: Despite Plenty of Doctors, P Fails to Survive SJ

Here, the defendant brought a motion for summary judgment and did meet his prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. The reports of Dr. Arovas and Dr. Camp were unsworn, and hence, without probative value. The proffered hospital records merely reflect neck strain, which does not constitute a serious injury. The affirmation and report of Dr. Khabie failed to proximately relate any particular findings to the subject accident. Finally, the reports of Dr. Mendoza, Dr. Scott Jones, Dr. Nicholas Jones, and Dr. Petrucci failed to demonstrate cervical spine or left shoulder range of motion limitations roughly contemporaneous with the subject accident. 

 

4/22/08            Tinsley v. Bah

Appellate Division, Second Department

Defendants’ Failure to Shift Burden Renders Plaintiff’s Opposition Material Moot

Here, defendants’ summary judgment motions were denied as they failed to meet their initial prima facie burdens. Their respective motion papers did not adequately address the plaintiff's claim, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident. The subject accident occurred on June 4, 2005. The plaintiff alleged that he was confined to his bed and home for a period of 4½ months. The defendants' examining neurologist conducted his examination of the plaintiff approximately 1½ years after the subject accident. He did not relate his medical findings to this category of serious injury. Plaintiff's deposition testimony relied upon by the defendants essentially established only that the plaintiff was retired at the time of the subject accident.

 

4/24/2008        Soto v. Koysor

Appellate Division, First Department                                                                                          Plaintiff’s Failure to Explain Termination of Medical Treatment Leads to SJ                         The Appellate Division reversed a lower court order which had denied defendants' motion for summary judgment dismissing the complaint. Plaintiffs provided no explanation for terminating their medical treatment several months after the accident in which they claim to have sustained “serious injury.”

 

4/22/08            Rabolt v. Park

Appellate Division, Second Department

Plaintiff’s Return to Normal Range of Motion 8 Days After MVA Leads to SJ

Plaintiff’s failure to raise a triable issue of fact led the Appellate Division to affirm a lower court order which had granted defendants’ summary judgment motion. Defendants met their initial prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. The chiropractic and physical therapy reports relied upon by the plaintiff were not competent evidence since the chiropractic report was not sworn to and the physical therapy reports were not affirmed. The hospital records merely showed that the plaintiff was diagnosed with a back sprain. Sprains and strains are not serious injuries. Plaintiff’s doctor concluded that the plaintiff's cervical range of motion was restricted as a result of the subject accident. However, in his medical report eight days after the subject accident, he noted that the plaintiff had normal range of motion in her neck. 

 

4/22/08            Abari v Afza Empire, Inc.

Appellate Division, Second Department

Quick and To The Point: Plaintiff’s Treating Neurologist Raised a Triable Issue of Fact

In a brief opinion, the Appellate Division affirmed a lower court order, which denied the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants made a prima facie showing. However, the affirmed report of the plaintiff's treating neurologist was sufficient to raise a triable issue of fact.

 

4/22/08            Byam v Waltuch

Appellate Division, Second Department

Litany of Problems Prevents Plaintiff From Raising a Triable Issue of Fact

An order granting defendant’s motion for summary judgment was affirmed as plaintiff had plenty of problems trying to raise a triable issue of fact. The defendant met her prima facie burden. In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s treating physician was without any probative value since the physician relied on the unsworn reports of others. Further, the affidavit of the plaintiff’s treating chiropractor failed to address the findings of the defendant’s examining radiologist, who concluded that the injuries to the plaintiff's cervical spine, lumbar spine, and left knee were the result of degeneration. This failure rendered speculative the chiropractor’s opinion. Moreover, he failed to adequately address the fact that the plaintiff was involved in a prior accident.

 

4/22/08            Djetoumani v. Transit, Inc.

Appellate Division, Second Department

Live By the ROM, Die By the ROM: P uses D’s Doc’s Findings to Survive SJ

In a lengthy opinion, plaintiff survived summary judgment dismissing the complaint. The Appellate Division affirmed the lower court order. The defendants established their entitlement to summary judgment. In opposition, Djetoumani raised a triable issue of fact based on the affirmations of his treating and examining physicians demonstrating that he sustained, among other things, a torn rotator cuff. Although the initial physical examination by Djetoumani’s treating physician did not reveal a limitation in the range of motion of his right shoulder, magnetic resonance imaging, performed two weeks later, demonstrated a rotator cuff tear.

In general, the absence of an assertion of the normal range of motion is insufficient to establish the significant or consequential limitation of use necessary to sustain a claim because it requires the court to speculate as to the meaning of the physical finding. However, no such speculation is necessary because of the ROM contained in the reports of the defendants' examining physicians. A statement by an expert that is put forward by a party in litigation constitutes an informal judicial admission that is admissible against, although not binding upon, the party that submitted it. Thus, just as a nonmoving plaintiff in a serious injury case may rely upon the unsworn report of the plaintiff’s treating physician once it has been submitted by the moving defendant a nonmoving plaintiff may rely upon the statement by the moving defendant’s expert of the applicable normal range of motion.

4/22/08            Endzweig-Morov v. MV Transp., Inc.

Appellate Division, Second Department

How Not to Raise a Triable Issue of Fact: Let’s Count the Ways

Plaintiffs were not successful in their appeal of a lower court order which granted defendants' motion for summary judgment for a number of reasons. The defendants met their prima facie burden. In opposition, the plaintiffs failed to raise a triable issue of fact. The affirmed medical reports prepared by plaintiffs’ examining neurologist were without any probative value, since he clearly relied on the unsworn medical reports of others. The medical reports were also not based on recent examinations. The chiropractic report was insufficient as it was unaffirmed and thus without any probative value.

 

4/22/08            Jones v Gooding

Appellate Division, Second Department

Short and Sweet: Miss Just One Day of Work, then No Serious Injury

The Appellate Division affirmed a lower court order which granted that branch of the defendant’s renewed motion which was, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. Here the motion was granted upon the evidence presented; there [was] no rational process by which the fact trier could find that the plaintiff sustained a serious injury. Since the plaintiff missed only one day of work, he did not qualify under the 90/180 day category.

 

4/22/08            Marrache v Akron Taxi Corp.

Appellate Division, Second Department

Reversed: SJ Granted on Appeal as Plaintiff Fails to Raise a Triable Issue of Fact

Defendants successfully appealed a lower court order which had denied its motion for summary judgment. The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.  In opposition, the injured plaintiff failed to raise a triable issue of fact. The vast majority of the submissions of the injured plaintiff were unsworn, and thus without any probative value. The submissions of expert physicians Oksana Levitansky and Joyce Goldenberg were insufficient to raise a triable issue of fact. Neither expert addressed the findings of the appellants' examining radiologist, who concluded that the injured plaintiff suffered from degenerative disc disease in the C2 through C7 levels of her cervical spine. This failure rendered speculative Levitansky and Goldenberg's respective conclusions that the injuries and limitations that they noted were caused by the subject accident.

 

4/22/08            Marshall v Institute for Community Living, Inc.

Appellate Division, Second Department

Court to Counsel: Read VBOP & Address the SI Categories or Suffer the Consequences Defendants’ Failure to Address Plaintiff’s 90/180 day serious injury claim means plaintiff’s Complaint is still alive and kicking. The defendants' summary judgment motion papers did not adequately address the plaintiff's claim, clearly set forth in his verified bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the accident. The defendants' examining neurologist and orthopedist conducted their independent examinations of the plaintiff over two years after the accident. Neither expert related their findings concerning this category of serious injury for the period of time immediately following the accident.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

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

 

Litigation

 

4/29/08            St. Vincent’s Hosp. of Richmond v. Government Employees Ins. Co.

Appellate Division, Second Department

An Employee Affidavit with Knowledge of Office Practice on Denials Sufficient to Defeat Plaintiff’s Motion.

The plaintiff’s summary judgment motion was properly denied as the insurer raised an issue of fact precluding summary judgment through the submission of an employee affidavit that the denial of claim was timely mailed.  Further, the court stated that the affidavit from an employee with knowledge of the insurer’s standard office practices as to generating a denial of claim form and mailing of same was sufficient evidence to create an issue of fact.

 

4/25/08            State Farm Mut. Auto. Ins. Co. a/a/o Danita Nicholls v. Clouden

Appellate Division, Fourth Department

We Cannot Dismiss Something That Never Existed.

Plaintiff commenced a property damage action against the defendant in Buffalo City Court.  Thereafter, without leave of the court, the plaintiff sought to amend its complaint to include another cause of action to recover PIP and APIP benefits paid to its insured.  Unfortunately, the proposed amendment would render the case in excess of the jurisdictional limits of Buffalo City Court if the plaintiff prevailed on both causes of action.  The plaintiff, upon advice of a court attorney, moved to remove the action to Supreme Court.  Plaintiff’s motion was granted and the defendant’s cross-motion to dismiss the complaint as to the claim for recovery of PIP and APIP benefits and remove the action back to Buffalo City Court was denied.  On appeal, the Court correctly upheld the lower court’s decision stating that the plaintiff failed to amend its complaint to add this cause of action.  Therefore, there was no cause of action to dismiss.

 

4/25/08            Erie Ins. Co. v. Malcolm,

Appellate Division, Fourth Department

Arbitration Location Cannot be More Than 100 Miles From Insured’s Residence.

The respondent was purportedly injured in a motor vehicle accident in Brooklyn and sought uninsured motorist coverage from his insurer.  The respondent resided in West Seneca (well over a hundred miles from Brooklyn).  The respondent filed an arbitration demand with the American Arbitration Association (AAA).  The respondent requested a venue change from Erie County to Kings County and when AAA refused commenced this proceeding.  The petitioner argued that the assigned arbitrator violated the venue rules AAA was bound by and further claimed it was disadvantaged because the petitioner’s primary place of business was in Rochester.  The lower court denied the petitioner’s motion and on appeal the Court reversed.  The Court held that the assigned arbitration violated the AAA venue rules, which are actually promulgated regulations by the Insurance Department found at 11 NYCRR §65-4.5(i)(1), as an arbitration cannot be held more than 100 miles from the insured’s residence.

 

4/25/08            A Khodadadi Radiology, P.C. v. Travelers Prop. Cas. Ins. Co.

Appellate Term, Second Department

Insurer Establishes Timely Issuance of Denial and Peer Review Raises Issue of Fact Precluding Summary Judgment.

Plaintiff’s motion for summary judgment was properly denied as the defendant established that its denial of claim was timely issued and its peer review report created an issue of fact precluding summary judgment.

 

4/25/08            City Wide Social Work and Psych. Serv. v. State-Wide Ins. Co.

Appellate Term, Second Department

Demonstration of Timely Denial = Meritorious Defense = Default Judgment Vacated

Insurer’s motion to vacate judgment was properly denied as the insurer failed to demonstrate a meritorious defense as there was no demonstration that the insurer’s denial was timely issued.

 

4/21/08            Executive MRI Imaging, P.C. v.  Travelers Prop. Cas. Ins. Co.

Appellate Term, Second Department

Insurer Establishes Timely Issuance of Denial and Peer Review Raises Issue of Fact Precluding Summary Judgment.

Plaintiff’s motion for summary judgment was properly denied as the defendant established that its denial of claim was timely issued and its peer review report created an issue of fact precluding summary judgment.

 

4/21/08            Executive MRI Imaging, P.C. a/a/o Roman Nozadze v. State Farm Ins. Co. Appellate Term, Second Department

Plaintiff’s Motion Denied for Failure to Submit Business Records in Admissible Form.

Plaintiff’s motion for summary judgment was denied as it failed to submit evidence in admissible form to lay the proper foundation for admission of documents as business records.  Accordingly, the plaintiff failed to establish its prima facie case entitling it to summary judgment.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

A quick reminder this week, before I get started.  As the cases below painfully show, when dealing with any contract or policy, one should always start reading at the first word on the first page and not stop until the last word on the last page is read.  Oh, and mind your discovery orders too.  Okay, enough lecturing, now on to the offering…

 

04/25/08          American Motorists Ins. Co. v Louis P. Ciminelli Constr. Co., Inc.

Appellate Division, Fourth Department

Waiver Clause Meant what it Said:  Plaintiff’s Claim Dismissed by Operation of a Waiver of Subrogation Clause

The trial court’s dismissal of plaintiff’s subrogation action was affirmed by the Fourth Department where the prevailing contract contained a clear and unambiguous “waiver of subrogation” clause.  In so holding, the Court noted that even if the existence of gross negligence can operate to preclude the application of the waiver, there was no such activity in the instant case. 

 

04/22/08          General Sec. Ins. Co. v Nir

Appellate Division, Second Department

Spoliation Charge Denied where Sprinkler Company Ignored Three Requests to Inspect Allegedly Defective Sprinkler

In this subrogation action, plaintiff sought recovery for a fire loss from the installer of the sprinkler system at the insured premises.  In its defense, Buckmiller (the installer) asserted a spoliation argument based on the fact that the sprinkler was no longer available for inspection, and as such its defense was materially prejudiced.  In decisively striking down Buckmiller’s argument, the Second Department noted that Buckmiller had previously inspected the system prior to its disassembly, that plaintiff had informed Buckmiller of its intention to pursue the instant subrogation action prior to the systems disassembly, and that plaintiff requested Buckmiller make plans to inspect the sprinkler system prior to its removal.  In light of this, the Court reasoned that there was no showing that defendant had been unfairly disadvantaged.

 

Now for some May Day Potpourri:

 

04/29/08          Falkowski v Krasdale Foods, Inc.

Appellate Division, Second Department

Workers’ Compensation Law § 11 No Help in Opposing a Claim for Contractual Indemnification

Third-party plaintiff’s motion for contractual indemnification was granted where the third-party defendant agreed to provide the protection as a part of a written contract.  The fact that the contract was unsigned by the third-party defendant/indemnitor did not make it unenforceable, and the exclusivity of the Workers’ Compensation law was inapplicable to a claim for contractual indemnification. 

 

Further, the Second Department affirmed the trial court’s grant of summary judgment to third-party plaintiff as a result of third-party defendant’s failure to procure insurance naming the third-party plaintiff as an additional insured thereunder.

 

04/29/08          Wilson v Galicia Contr. & Restoration Corp.

Court of Appeals

Failure to Comply with Discovery Orders Resulted in Loss of All Defenses

The Background:

 

In this simple case, plaintiff commenced the above matter alleging injury to his eye when debris fell from a scaffold as he looked up.  One of the defendants, Safeway Steel Products (“Safeway”) failed to comply with a number of Court directed Discovery Orders.  In time, the Court eventually struck defendant’s Answer which thereby resulted in Safeway consenting to the allegations as drafted in plaintiff’s Complaint.  The only problem was that subsequent to Safeway’s Answer being stricken, an expert of the remaining defendant’s concluded that plaintiff’s injuries were actually caused by an pellet which had been shot into plaintiffs eye from an air gun.  The remaining defendants were stipulated out of the case with prejudice, but Safeway (who was deemed to have consented to plaintiff’s allegations) remained. 

 

The Result:

 

At the subsequent inquest, Safeway first tried to reopen the defense of the matter by arguing it had a justifiable excuse, and that the discovery order was void due to a stay in another matter.  It should not be surprising that this argument went no where.  Safeway also argued that plaintiff should not be able to recovery on a claim that may be based on fraud.  The trial court held that any argument to allegations in the Complaint was lost due to Safeway’s failure to comply with Court orders.

 

In response, Safeway next argued that plaintiff’s inquest papers were insufficient because they did not include evidence of a viable cause of action.  This was dismissed by the Court of Appeals because Safeway failed to preserve the argument by mentioning it at any point in the underlying proceedings.  Moreover, the Court refused to permit Safeway to explore evidence of fraud because “appellants “failure to produce…items on or before the date certain” rendered it [the Order] absolute.” In turn, the Court held that Safeway had been “deemed to admit ‘all traversable allegations in the complaint’.”

 

Yeah, but:

 

A well written dissent authored by Judge Pigott openly worries about the precedent permitting a plaintiff to collect an unfettered award when there were colorable allegations of fraud afoot.  In turn, Justice Pigott indicated that Safeway’s default should have been vacated as a result of fraud, and a full consideration should have been giving to the defense’s pellet theory. 

 

04/24/08          Sanatass v. Consolidated Investing Co., Inc.

Court of Appeals

Owner Cannot Escape Liability under Labor Law § 240(1) by Inserting a Prior Consent Clause in the Lease Agreement

The Background:

 

Tenant’s lease agreement required that tenant receive prior written consent from an owner prior to making changes “in or to the demised premises.”  Of course, without the owner’s consent, tenant contracted for a commercial air conditioning unit to be installed.  In the course of that installation, the air conditioner fell and injured the plaintiff.  In its defense, owner argued that it was not liable because (a) the activity being performed was not an alteration under the Labor Law, or, conversely, (b) it is not an “owner” under the Labor Law because it was an “out of possession landlord who has no knowledge of the work being done.”  The owner pointed to the tenant’s breach of the prior written consent provision of the lease as illustrative of the “severed nexus.”  It was (b) that the Appellate Division found persuasive, and plaintiff’s cause of action was dismissed accordingly.

 

The Result:

 

The Court quickly dispelled the owner’s argument that the installation of a commercial air conditioner was not an alteration.  Further, in response to the owner’s second argument, the Court of Appeals reversed the Appellate Division’s dismissal.  In so holding, the Court noted that the owner “may not escape strict liability…based on its lack of notice or control over work.”  Owner’s position was characterized as an attempt to contract out of Labor Law § 240(1) liability, which, if successful, would “eviscerate the strict liability protection afforded by the Labor Law.”  Finally, the Court noted that any modification of the long standing rule of strict liability running to an owner could not be altered without legislative intervention.

 

Yeah, but:

 

Again, a compact, reasoned dissent (this time by Judge Smith) argued that it was unfair to saddle the owner with strict liability when it took steps to control work performed at its premises.  Relying upon testimony provided by the owner’s representatives, Judge Smith noted that the written consent provision of the lease agreement would have provided the owner with control over whom was hired to perform work at the premises.  In Judge Smith’s view, the tenant’s failure to notify the owner of the work prevented the owner from having any control over the safety of the jobsite.  It was due to the tenant’s breach that the owner was not notified, and accordingly, it should have been insulated from the resulting strict liability of the Labor Law.

 

EARL’S PEARLS

Earl K. Cantwell, II

[email protected]

 

AN ESI “SAFE HARBOR”

 

FRCP 37(e) has been amended (as of 12/06) to provide that, absent exceptional circumstances, sanctions should not be imposed for loss of ESI (electronically stored information) due to the routine, good-faith operation of a party’s electronic information system.  The amendment recognizes that computer systems create a risk that a party may lose or delete potentially discoverable information without intent or culpable conduct on its part.

 

Recent cases:  U&I Corporation v. Advanced Medical Design, Inc., 2007 U.S. Dist. Lexis 86530 (M.D. Fla. 2007), cited FRCP 37(e) in response to a sanctions motion. The Court ruled that it required more specific information on whether certain e-mails were “forever lost,” and what efforts had been made to retrieve them. The party was directed to file an affidavit from the client detailing (a) why the e-mails were now “unloadable,” and (b) what had been done to try to retrieve the information.

 

Peskoff v. Faber, 244 F.R.D. 54 (D.C.D.C. 2007). New FRCP 37(e) may not help or exempt a party who fails to stop the operation of a computer system that is deleting information that may be discoverable in litigation. Court ordered the parties to work with the U.S. Magistrate to RFP and get bids from forensic technicians to examine the computer system to ascertain whether e-mails and certain other ESI still existed.

 

P.S.: The Court continued its involvement because in its view, the parties “despised each other,” and the lawyers “are not too crazy about each other either.”

 

 

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

 

4/25/08            McSparrin v. Direct Insurance

Arkansas Supreme Court
Voluntary Intoxication Does Not Prevent Individual from Forming Intent Required to Trigger Exclusionary Clause in Insurance Policy

The Arkansas Supreme Court affirmed the trial court’s ruling that Diana McSparrin’s voluntary intoxication did not prevent her from forming the intent required to trigger the exclusionary clause in her insurance policy. McSparrin repeatedly rammed her car into the car of her boyfriend’s neighbor while she was drunk. The police arrested her for Driving While Intoxicated. McSparrin’s insurance company, Direct Insurance Company, filed an action for a declaratory judgment and alleged that because McSparrin had intentionally driven her vehicle into the neighbor’s vehicle, Direct did not have a duty to defend or indemnify under an exclusionary clause. McSparrin argued that she could not have intentionally rammed the vehicle due to her voluntary intoxication. McSparrin also argued that the Arkansas legislature endorsed the public policy in favor of compensating victims by mandating automobile insurance. The Arkansas Supreme Court held that the trial court’s decision that McSparrin’s course of conduct showed that she acted intentionally was not clearly against the preponderance of the evidence, nor was it contrary to any public policy.

Submitted by: Patrick L. Spivey and David M. Fuqua (HOPE, FUQUA & CAMPBELL, P.A.)

 

4/23/08            American Family Insurance Co. v. Chamunda, Inc.

Court of Appeals of Ohio, Ninth Judicial District
Liability Coverage for Grocery Store Precluded by Exclusion Pertaining to Alcohol Sales to Minors

American Family Insurance Company issued a business liability policy to a grocery store, Chamunda Inc. dba MJ Food Mart (“Food Mart”). When Food Mart allegedly sold alcohol to a minor who later caused an automobile collision that killed two people and injured several others, a lawsuit was filed against Food Mart, its sole shareholder, and an employee (collectively, “the insureds”), for damages resulting from the collision. When American Family learned of the action, it sent letters to the insureds, explaining that it would retain a lawyer to represent them under a reservation of rights, and that it would provide a defense only “until [American Family’s] rights can be determined by a Court.” After providing a defense for some time, American Family filed a complaint for declaratory relief, seeking a declaration that it owed no duty to defend or indemnify the insureds based on a policy exclusion that precluded coverage to any insured that sells alcoholic beverages for “bodily injury or property damage for which any insured may be held liable by reason of . . . the furnishing of alcoholic beverages to a person under the legal drinking age . . . .” The trial court granted summary judgment in favor of American Family, and the appellate court affirmed. The court reasoned that the clear language of the policy excluded coverage for bodily injury or property damage claims arising from the sale of alcohol to someone under the legal drinking age, and the insureds did not dispute that the only allegation against them was that they sold alcohol to the minor driver. The court also found that the insured’s affirmative defense of laches did not apply to bar American Family’s claim because, even though American Family waited an “extended period of time” before filing the declaratory judgment suit, the insureds did not demonstrate that the delay was unreasonable or that they suffered resultant prejudice. Finally, the court found that the trial court correctly granted summary judgment to American Family on the insured’s counterclaims for bad faith and breach of contract, as the insureds failed to point to any evidence in the record demonstrating a genuine issue of material fact as to those claims.

Submitted by: Bruce D. Celebrezze & Nicholas J. Boos of Sedgwick Detert Moran & Arnold LLP 

 

4/23/08            Enterprise Rent-A-Car of Boston, Inc. v. Arabella Mutual Ins. Co.
Supreme Judicial Court of Massachusetts

Massachusetts Statute Permits Self-Insured Owner of Rental Vehicle to Seek Subrogation Against Personal Automobile Insurance Carrier of Vehicle Operator for Personal Injury Protection Payments
In June 2001, Joseph Navis (“Navis”) rented a car from Enterprise Rent-a-Car of Boston, Inc. (“Enterprise”). Enterprise owned and self-insured the vehicle. Enterprise maintained a standard Massachusetts automobile insurance policy, which included personal injury protection (“PIP”) benefits, that covered the automobile that Nevis rented. Enterprise did not maintain optional bodily injury coverage for guest passengers. While operating the rented vehicle, Navis was involved in an accident with another automobile that was owned by Nguyen Thi Phan (“Phan”). Both Navis and Phan maintained standard Massachusetts automobile insurance policies that included PIP benefits. Navis’s policy was with Metropolitan Property and Casualty Insurance Company (“Metropolitan”); Phan’s policy was with Arbella Mutual Insurance Company (“Arbella”). Navis and three passengers in his vehicle sustained personal injuries in the accident, and Enterprise paid the passengers a total of $16,171.60 in PIP benefits. Enterprise claimed an entitlement to subrogation from Metropolitan or Arbella for the PIP benefits it paid to Navis’s three passengers., and sought to compel arbitration on the issue. The trial court granted Metropolitan’s motion for summary judgment, reasoning that Enterprise could not “seek to have Metropolitan pay for the PIP benefits of . . . the passengers simply because Metropolitan is Navis’[s] personal insurer.” Enterprise appealed, and the Supreme Judicial Court of Massachusetts transferred the appeal to its court on its own motion. The issue on appeal was whether a self-insured owner of a rental vehicle (Enterprise) may seek subrogation under a Massachusetts statute (G.L.c. 90, § 34M) against the personal automobile insurance carrier of the operator of its vehicle (Metropolitan), for PIP benefits it paid. The court answered this question in the affirmative, reasoning that the express language of G.L.c. 90, § 34M authorized Enterprise, as an “insurer paying benefits” to seek subrogation against “any other insurer.”

Submitted by: Bruce D. Celebrezze & Nicholas J. Boos of Sedgwick Detert Moran & Arnold LLP

 

REPORTED DECISIONS

 

Marsala v Travelers Indemnity Company


Jose R. Mendez, P.C., Rego Park, N.Y., for appellant.
Rivkin Radler LLP, Uniondale, N.Y. (Alan C. Eagle and Joanne
M. Engeldrum of counsel), for
respondent.

DECISION & ORDER

In an action pursuant to Insurance Law § 3420(a)(2) to recover an unsatisfied judgment against the defendant's insured, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated September 14, 2007, which denied her motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant's cross motion for summary judgment dismissing the complaint and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

In 2002 the plaintiff was struck by a truck owned by nonparty 3-D Transport of South Jersey (hereinafter 3-D Transport), and driven by its employee, nonparty Dennis A. Gunter. Following her commencement of a personal injury action against 3-D Transport and Gunter, and their nonappearance, the plaintiff obtained a default judgment in the sum of $126,600 against Gunter. The plaintiff then commenced this action pursuant to Insurance Law § 3420(a)(2) against the defendant, the alleged insurer of 3-D Transport, to recover the unsatisfied judgment, and moved for summary judgment.

The defendant cross-moved for summary judgment dismissing the complaint, alleging that the subject policy did not provide insurance coverage to 3-D Transport or Gunter. The Supreme Court denied the motion and granted the cross motion.

Insurance Law § 3420(a)(2) provides that "in case judgment against the insured . . . shall remain unsatisfied at the expiration of thirty days from the serving of notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer, then an action may . . . be maintained against the insurer" (see Lang v Hanover Ins. Co., 3 NY3d 350, 354; Eagle Ins. Co. v Ortega, 251 AD2d 282, 283).

In support of her motion for summary judgment, the plaintiff sufficiently established her entitlement to judgment as a matter of law against the defendant by demonstrating her compliance with the requirements of Insurance Law § 3420(a)(2) (see Brogan v New Hampshire Ins. Co., 250 AD2d 562, 562-563). In opposition, the defendant raised a triable issue of fact as to the existence of coverage for the tortfeasor under the particular policy relied upon by the plaintiff (see Matter of New York Cent. Mut. v Coriolan, 5 AD3d 493; Matter of American Tr. Ins. Co. [Glaudey State Farm Mut. Auto. Ins. Co.], 208 AD2d 376, 377; see generally Alvarez v Prospect Hosp., 68 NY2d 320). Therefore, the plaintiff's motion for summary judgment was properly denied.

However, contrary to the Supreme Court's conclusion, the defendant failed to establish its entitlement to summary judgment by conducting an "exhaustive search" of the tortfeasors' names in the company's records (Matter of Travelers Indem. Co. v Machado, 28 AD3d 569, 570; see Matter of Highlands Ins. Co. v Baez, 18 AD3d 238, 239; Matter of New York Cent. Mut. v Coriolan, 5 AD3d 493; Brogan v New Hampshire Ins. Co., 250 AD2d at 563; Matter of Allstate Ins. Co. v Karadag, 205 AD2d 531, 532). Accordingly, the defendant's cross motion for summary judgment dismissing the complaint should have been denied.
.

ENTER:

Yoda, LLC v. National Union Fire Insurance Company of Pittsburgh, Pa.

 

Sedgwick, Detert, Moran & Arnold LLP, New York (Jeffrey
M. Winn of counsel), for appellant.
Miranda Sokoloff Sambursky Slone Vervenoitis, LLP, Mineola
(Michael A. Miranda of counsel), for respondents.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 28, 2006, which denied defendant National Union Fire's motion to dismiss the complaint and granted plaintiffs' cross motion for summary judgment to the extent of declaring the insurer's disclaimer of coverage ineffective under Insurance Law § 3420(d), unanimously modified, on the law, the cross motion denied, without prejudice to renewal after completion of discovery, and otherwise affirmed, without costs.

Inasmuch as no discovery has been conducted in this matter, and contrary to the IAS court's observation, National Union did object to entertaining the motion for summary judgment, the court erred in ruling on it at this juncture (see Primedia Inc. v SBI USA LLC, 43 AD3d 685 [2007]; see also City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). A judgment for plaintiffs on the merits must at least await the filing of an answer.

National Union's motion to dismiss was properly denied, however, since there are questions concerning, for instance, the parties' intentions, the terms of the subcontract, and National Union's delay in disclaiming while monitoring the underlying Labor Law litigation, which preclude a determination as a matter of law that Yoda and Riverhead were not additional insureds, even in the absence of an explicit listing of their names on the umbrella policy (see e.g. Queens Off. Tower Assoc. v General Mills Rest., 269 AD2d 223, 224 [2000]).

National Union's reliance on the employers' liability exclusion in its policy is unavailing. The reason for this is that if Yoda and Riverhead are found to be additional insureds, the liability of National Union's insured (the nonparty subcontractor and employer of the injured worker) would be indirect (see North Riv. Ins. Co. v United Natl. Ins. Co., 81 NY2d 812, 814 [1993]).

Desir v. Nationwide Mutual Fire Insurance Company

 

Pecoraro & Schiesel, New York, N.Y. (Steven J. Pecoraro of
counsel), for appellants.
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y.
(Lorin A. Donnelly and David S.
Taylor of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring the respective rights of the parties under a certain insurance policy, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Grays, J.), entered April 17, 2007, which granted the motion of the defendant Nationwide Mutual Fire Insurance Company for summary judgment declaring that it is not obligated to defend the defendant Hector Sburlati in an underlying personal injury action entitled Desir v Sburlati, commenced in the Supreme Court, Queens County, under Index No. 19290/99, and declared that the defendant Nationwide Mutual Fire Insurance Company is not so obligated.

ORDERED that the order and judgment is affirmed, with costs.

The assault alleged in the underlying action is an intentional act, which does not constitute an "occurrence" within the meaning of the policy issued by the defendant Nationwide Mutual Fire Insurance Company (hereinafter the insurer) to the defendant Hector Sburlati (hereinafter the insured), which defines "occurrence" as a "bodily injury or property damage resulting from an accident, including continuous or repeated exposure to the same general condition" (see Diviney v Aetna Life & Cas. Co., 257 AD2d 643, 643-644; Tomain v Allstate Ins. Co., 238 AD2d 774; Board of Educ. of E. Syracuse-Minoa Cent. School Dist. v Continental Ins. Co., 198 AD2d 816, 816-817). Further, the inclusion in the underlying complaint of causes of action sounding in negligence and alleging carelessness does not alter the fact that "the operative act giving rise to any recovery is the assault" (Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 352; see Public Serv. Mut.Ins. Co. v Camp Raleigh, 233 AD2d 273).

Inasmuch as there is no legal basis upon which the insurer can be held liable for coverage, there is no obligation to provide a defense or to indemnify the insured (see Zappone v Home Ins. Co., 55 NY2d 131, 138; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876; Green Chimneys School for Little Folk v National Union Fire Ins. Co. of Pittsburgh, Pa., 244 AD2d 387). In any event, coverage for the insured's conduct is also barred by the policy's exclusionary clause for intentional acts. Accordingly, the Supreme Court properly determined that the insurer had no duty to provide a defense to the insured or to indemnify him in the underlying action to recover damages for the assault.

The appellants' remaining contentions are without merit.

47 Mamaroneck Avenue Corporation v. Hartford Fire Insurance Company


La Sorsa & Beneventano, White Plains, N.Y. (Gregory M. La Sorsa
and Robert Gilmore of counsel), for appellants.
Paul I. Marx, White Plains, N.Y., for respondents.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendants are obligated to pay the costs of defending an underlying action brought in the United States District Court, Southern District of New York, entitled Rent-A-Center, Inc. v 47 Mamaroneck Avenue Corporation and Timothy Engel, Docket No. 2002 Civ. 0213(CM), the plaintiffs appeal from an order of the Supreme Court, Westchester County (Rudolph, J.), entered November 30, 2006, which granted the defendants' motion for summary judgment declaring that the disclaimer of insurance coverage issued to them in the underlying action was valid and proper, and denied their cross motion for summary judgment on the complaint.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the disclaimer of insurance coverage issued to the plaintiffs in the underlying action entitled Rent-A-Center, Inc. v 47 Mamaroneck Avenue Corporation and Timothy Engel, in the United States District Court, Southern District of New York, under Docket No. 2002 Civ. 0213(CM) was valid and proper.

In 2000, the plaintiff 47 Mamaroneck Avenue Corporation leased property to Rent-a-Center, Inc. (hereinafter RAC). In January 2002, RAC commenced the underlying action in the United States District Court for the Southern District of New York, alleging, inter alia, that 47 Mamaroneck Avenue Corporation and its president, Timothy Engel, "embarked on a plan of harassment and coercion with the intention of causing RAC to terminate its leasehold," which included "[t]respassing upon [RAC's] premises and interfering with RAC's business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector . . . to solicit or elicit non-existent fire code violations." On December 18, 2003, a decision was rendered in the underlying action, among other things, dismissing RAC's claims sounding in tort.

In the instant action, the plaintiffs seek to recover from the defendant insurance carriers the costs of defending the underlying action. In the order appealed from, the Supreme Court concluded that there was "no coverage under the policy of insurance for the underlying action," and therefore, there was no duty to defend.

On appeal, the plaintiffs argue that the allegations of wrongful eviction and/or wrongful entry were covered under the "personal and advertising injury" provision of the policy for claims that the insured committed various offenses including the "wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor" (emphasis added).

Although the term "person" is not defined in the policy, the definition of "personal and advertising injury" in the policy distinguishes between "person" and "organization;" defamation of a "person or organization" is included in the definition, while the wrongful eviction and wrongful entry is limited to "the right of private occupancy of a room, dwelling or premises that a person occupies" (emphasis added). Since RAC was not a natural person, any invasion of its leasehold was not covered by the definition of "personal and advertising injury" (see Stonelight Tile v California Ins. Guar. Assn., 150 Cal App 4th 19, 58 Cal Rptr 3d 74; Mirpad, LLC v California Ins. Guar. Assn., 132 Cal App 4th 1058, 34 Cal Rptr 3d 136; Supreme Laundry Servs. v Hartford Cas. Ins. Co., 2007 US Dist LEXIS 18134 [ND Ill. 2007]).

"A disclaimer is unnecessary when a claim does not fall within the coverage terms of an insurance policy" (Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648; see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599). Since the claims in the underlying action were not covered by the policy, no disclaimer was required. In any event, the requirement in Insurance Law * 3420(d) that a written notice of disclaimer shall be given "as soon as is reasonably possible" only applies to claims arising from "death or bodily injury," which are not at issue in this case (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188).

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

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

In the Matter of Continental Insurance Company v. Biondo


Melito & Adolfsen P.C. New York, N.Y. (Ignatius John Melito and
S. Dwight Stephens of counsel), for appellant.
Feeney & Associates, PLLC, Hauppauge, N.Y. (Nancy D. Kreiker of counsel), for
petitioner-respondent.
DeSena & Associates LLP, New York, N.Y. (David R. Walton of counsel), for
respondents-respondents.


DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Zurich American Insurance Company appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered March 19, 2007, which, after a hearing, granted the petition.

ORDERED that the judgment is reversed, on the law and the facts, with costs payable to the appellant by the petitioner, the petition is denied, and the proceeding is dismissed.

A petitioner seeking to permanently stay the arbitration of an uninsured motorist claim may make a prima facie case by producing the police accident report containing the vehicle's insurance code (see Matter of Eagle Ins. Co. v Rodriguez, 15 AD3d 399; Wausau Ins. Co. v Ramos, 151 AD2d 487). A prima facie case of insurance coverage may also be established by offering proof from the Department of Motor Vehicles (see Matter of Liberty Mut. Ins. Co. v Horowitz, 121 AD2d 634).

However, in this case, the police accident report does not list any insurance code number for the vehicle operated by the alleged tortfeasor. Moreover, the petitioner was unsuccessful in its attempts at a framed-issue hearing to admit into evidence documents from the Department of Motor Vehicles which may have established a prima facie case of insurance coverage.

Additionally, the petitioner did not establish that ownership of the vehicle in question was ever transferred to Long Beach Transportation Group (hereinafter Long Beach), the insured of Zurich American Insurance Company (hereinafter Zurich). Although the titled owner of the vehicle, Mark Feldman, delivered possession of the vehicle to an acquaintance, Ronald Hoos, pursuant to a bailment or consignment agreement, no transfer of title to Hoos or any third party was ever effectuated or perfected pursuant to Vehicle and Traffic Law § 2113(a) and (c) (see Kaminsky v Karmin, 187 AD2d 488, 489).

Contrary to the petitioner's contention and the Supreme Court's determination, the evidence at the framed-issue hearing did not establish that Hoos was employed by Long Beach. Additionally, there was no evidence that Long Beach was a vendee or vendor of the vehicle. Feldman, the prima facie owner, retained title to the vehicle (see Vehicle and Traffic Law § 2108[c]).

Even if Hoos possessed Feldman's vehicle for a period greater than 30 days, a fact which was implied, but not established, at the hearing, at best the petitioner would have demonstrated that Hoos, as a bailee, was an owner of the vehicle pursuant to Vehicle and Traffic Law § 128. However, because it was not proven that Hoos was an employee of Long Beach, there was no basis to find that Long Beach was also an owner of the vehicle. Accordingly, the evidence presented by the petitioner was insufficient to support a determination that Zurich insured Hoos on the date of the accident.

North Country Insurance Company v. Jandreau


Calendar Date: February 13, 2008
Before: Mercure, J.P., Peters, Rose, Kane and Malone Jr., JJ.

Richard P. Plochocki, Syracuse, for appellant.
Cappello, Linden & Ladouceur, Potsdam (Michelle
H. Ladouceur of counsel), for respondent.

MEMORANDUM AND ORDER

Kane, J.

Appeal from an order of the Supreme Court (Demarest, J.), entered April 5, 2007 in St. Lawrence County, which denied plaintiff's motion for summary judgment.

Defendant was the general contractor on a new home construction project. Paul Dominique was an employee of a roofing subcontractor working on the project. On March 30, 2005, defendant was present on the site and informed Dominique's supervisor that no one should go on the roof due to weather conditions. The supervisor apparently agreed. Soon thereafter, defendant discovered that Dominique had fallen off the roof and was taken to the hospital. In a phone call to the subcontractor that night, defendant learned that Dominique was transferred to another hospital and the subcontractor would inform his own insurance carrier of the occurrence. Defendant later learned that Dominique underwent leg surgery.

On April 13, 2006, defendant was served with a summons and complaint in the underlying personal injury action commenced by Dominique and his wife against defendant and the property owner. That same day, defendant forwarded the pleadings to his insurance agent, who immediately provided them to plaintiff, the insurer who issued defendant a general liability insurance policy for the relevant time period. Plaintiff disclaimed coverage based upon, among other things, defendant's failure to provide timely notice of the occurrence, and then commenced this action seeking a declaration that plaintiff is not required to defend or indemnify defendant in the underlying action. Supreme Court denied plaintiff's motion for summary judgment, prompting this appeal.

We affirm. The relevant provision of the policy states that "[i]n case of an occurrence or if you become aware of anything that indicates there might be a claim under this policy, you must give us or our agent notice . . . as soon as practicable." While compliance with an insurance policy's notice provision is required to obtain coverage, "there may be circumstances that excuse a failure to give timely notice, such as where the insured has 'a good-faith belief of nonliability,' provided that belief is reasonable" (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005], quoting Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 441 [1972]; see Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d 1117, 1118 [2007]). The insured bears the burden of establishing a reasonable excuse for the delay in providing notice, but the question of such reasonableness is generally a factual question for a jury (see St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030, 1031 [2007]; Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d at 1118-1119).

Here, defendant explained that he did not contact plaintiff because Dominique was working for the subcontractor and under the subcontractor's control and supervision at the time of the accident. The subcontractor had provided proof of liability and workers' compensation coverage prior to commencing work, and informed defendant on the day of the accident that it was submitting a claim to its insurer. Defendant did not hear from Dominique or anyone on his behalf from the date of the accident until defendant was served with the pleadings in the underlying action. He further believed that there was no liability because Dominique was acting contrary to his own advice, and presumably that of Dominique's supervisor, that no one go on the roof. Despite owning a construction company for 12 years, defendant had never been sued for a construction site injury and was thus unfamiliar with the nuances of liability. Defendant notified plaintiff the same day that he was served process. Under the circumstances, and in light of the preference for permitting a jury to decide the question of reasonableness, Supreme Court did not err in denying plaintiff's motion for summary judgment (see Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d at 1119; G.L.G. Contr. Corp. v Aetna Cas. & Sur. Co., 215 AD2d 821, 822 [1995]).

Graphic Arts Mutual Insurance Company v. Russell

 

Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered July 18, 2007 in a declaratory judgment action. The judgment, inter alia, declared that plaintiff is obligated to defend and indemnify defendant in two underlying personal injury actions.


LUSTIG & BROWN, LLP, BUFFALO (RANDOLPH E. SARNACKI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SLIWA & LANE, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT-RESPONDENT.


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

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that it is not obligated to defend or indemnify defendant in two underlying personal injury actions. The plaintiffs in those actions were injured when the vehicle driven by one, in which the other was a passenger, collided with a vehicle driven by defendant and owned by plaintiff's insured, a car dealership (hereafter, Baldo). Defendant, a customer of a consultant for Niagara Car and Truck (Niagara), asked the consultant to locate a late-model Cadillac or Lexus for him to purchase. After the consultant located a Cadillac through Baldo's employee, the consultant made arrangements with the employee to pick up the vehicle from Baldo, and the consultant would then deliver the vehicle to defendant for a test drive. The consultant provided dealer plates from Niagara when he picked up the vehicle, and no paperwork memorialized the transaction. It is undisputed that defendant had no personal contact with Baldo and that no Baldo employees were aware of defendant's identity. According to the consultant's arrangement with Baldo's employee, the consultant would return the vehicle to Baldo in the event that defendant did not want to purchase it and, alternatively, Niagara would purchase the vehicle from Baldo and then sell it to defendant in the event that defendant decided to purchase it. Defendant was involved in the accident with the plaintiffs in the underlying actions while test driving the vehicle, and those plaintiffs commenced their respective actions against defendant, the consultant individually and doing business as Niagara, and Baldo.

We conclude that Supreme Court properly granted the motion of defendant for summary judgment seeking, inter alia, a declaration that plaintiff is required to defend and indemnify him in the underlying personal injury actions based on his status as an insured under a garage liability insurance policy issued by plaintiff to Baldo. The policy defines "insureds" as permissive users of Baldo's vehicles, but it excludes from that definition four categories of permissive users, including "[y]our customers" with sufficient personal automobile insurance. Plaintiff disclaimed coverage on the ground that, although defendant was a permissive user, he was Baldo's customer with sufficient automobile insurance.

We conclude that defendant does not fall within the meaning of "[y]our customers" and thus that plaintiff was not entitled to disclaim coverage on that ground. It is well established that, "whenever an insurer wishes to exclude certain coverage from its policy obligations, it must do so in clear and unmistakable' language," and such exclusions are to be narrowly construed (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). Moreover, "unambiguous provisions of an insurance contract must be given their plain and ordinary meaning" (White v Continental Cas. Co., 9 NY3d 264, 267; see Vigilant Ins. Co. v Bear Stearns Cos., Inc., ___ NY3d ___ [Mar. 13, 2008]). Here, it is undisputed that defendant had no contact with Baldo and transacted no business with Baldo, and we thus conclude that the policy language excluding coverage for "[y]our customers" cannot be construed to include defendant. Defendant thus was a permissive user of the vehicle within the meaning of an insured under plaintiff's policy with Baldo. We have considered plaintiff's remaining contentions and conclude that they are lacking in merit.

B.F. Yenny Construction Company v. One Beacon Insurance Group

 

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered April 3, 2007 in a declaratory judgment action. The judgment, inter alia, denied the motion of defendant-third-party plaintiff for summary judgment.


GOLDBERG SEGALLA LLP, BUFFALO (DANIEL W. GERBER OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-APPELLANT.
COUGHLIN & GERHART, L.L.P., BINGHAMTON (KEITH A. O'HARA OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.

 

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the cross motion is denied, the third-party complaint is reinstated, the motion is granted, and judgment is granted in favor of defendant-third-party plaintiff as follows:


It is ADJUDGED and DECLARED that third-party defendant is obligated to provide primary coverage and to share equally with defendant-third-party plaintiff in the costs of plaintiff's defense and indemnification in the underlying action.

Memorandum: Plaintiff, the general contractor on a construction project, commenced this action seeking judgment declaring that defendant-third-party plaintiff, One Beacon Insurance Group (One Beacon), is obligated to defend and indemnify plaintiff in the underlying personal injury action. Plaintiff had entered into a subcontract with Syracuse Mosaic Terrazo, Inc. (Syracuse Mosaic) to perform tile work on the construction project, and an employee of Syracuse Mosaic and his wife commenced the underlying action seeking damages for injuries sustained by the employee at the work site. Pursuant to the terms of the subcontract, Syracuse Mosaic agreed to name plaintiff as an additional insured on its commercial general liability policy, which was issued by One Beacon. Supreme Court previously granted plaintiff's motion seeking summary judgment and declared, inter alia, that One Beacon is obligated to defend and indemnify plaintiff in the underlying action.

While plaintiff's motion was pending, One Beacon commenced a third-party action alleging that third-party defendant, Selective Way Insurance Company (Selective), is obligated to defend and indemnify plaintiff in the underlying action pursuant to the commercial general liability policy issued by Selective to plaintiff, and seeking judgment declaring that Selective's coverage obligation is co-primary to that of One Beacon. We conclude that the court erred in denying One Beacon's motion seeking summary judgment granting the declaration sought in the third-party complaint and in granting Selective's cross motion seeking, inter alia, summary judgment dismissing the third-party complaint and awarding Selective $13,656.90 to reimburse it for attorney's fees and costs incurred in the underlying action. In granting Selective's cross motion, the court erred in determining, without reference to the terms of the One Beacon and Selective policies, that coverage of plaintiff as an additional insured under the One Beacon policy was exclusively primary and that Selective's coverage was excess. "In order to determine the priority of coverage among different policies, a court must review and consider all of the relevant policies at issue" (BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 716). Contrary to the court's determination, the terms of the One Beacon and Selective policies are controlling, not the terms of the subcontract between plaintiff and Syracuse Mosaic (see United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d 1163, 1165; United States Liab. Ins. Co. v Mountain Val. Indem. Co., 371 F Supp 2d 554, 558-560). Pursuant to the "other insurance" and "method of sharing" provisions of those policies, both One Beacon and Selective have an obligation to provide primary coverage and to share equally in the costs of plaintiff's defense and indemnification in the underlying action (see Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 372; Pennsylvania Gen. Ins. Co. v Aetna Cas. & Sur. Co., 306 AD2d 906).

Finally, we reject Selective's contention that One Beacon is collaterally estopped from litigating the parties' respective obligations as coinsurers. The doctrine of collateral estoppel does not apply because the issue in the third-party action was not raised in connection with plaintiff's motion for summary judgment in the main action nor was it actually litigated in that action (see National Union Fire Ins. Co. v Hartford Ins. Co., 93 NY2d 983, 986; Merchants & Bus. Men's Mut. Ins. v Savemart, Inc., 213 AD2d 607, 609).

In re American Transit Insurance Company v. Wason


Martin, Fallon & MullÉ, Huntington (Richard C. MullÉ of
counsel), for appellants.
Aeneas E. Wills, Jr., Brooklyn, for American Transit Insurance
Company, respondent.

Order, Supreme Court, New York County (Nicholas Doyle, Special Referee), entered June 21, 2007, which granted the petition to stay arbitration of an uninsured motorist claim upon a finding that the vehicle owned by additional respondent Palache and insured by additional respondent State Farm Insurance Co., was involved in the subject accident, unanimously affirmed, without costs.

Respondent Cora Wason testified at a framed-issue hearing that the taxi in which she was a passenger was involved in an accident with a dark green, four-door vehicle, which fled the scene. Upon exiting the taxi, Wason and the taxi driver discovered a bumper with a license plate attached to it. The bumper was placed in the trunk of the taxi and taken to a nearby police precinct, and was subsequently left in the possession of the taxi driver. Approximately one week later, the driver delivered the license plate, now detached from the bumper, to Wason, who provided it to her attorney. The evidence was undisputed that the plate was registered to Palache, who while acknowledging that she owned a dark green, four-door vehicle, maintained that her vehicle was not involved in the accident.

The finding of the Special Referee, resting in large measure on considerations relating to the witnesses' credibility, that Palache's vehicle was involved in the subject accident, is supported by a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). It was within the province of the Special Referee to reject the chain of custody arguments proffered by additional respondents and conclude that the license plate discovered at the scene of the accident was the same one produced at the hearing.

We have considered additional respondents' remaining arguments and find them unavailing.

 

Abari v. Afza Empire, Inc.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto [Jason Levine] of counsel), for appellants.
Hach & Rose, LLP, New York, N.Y. (Philip S. Abate of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 21, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, contrary to the defendants' contention, the affirmed report of the plaintiff's treating neurologist was sufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
SKELOS, J.P., SANTUCCI, COVELLO, McCARTHY and CHAMBERS, JJ., concur.

Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered January 2, 2007 in a personal injury action. The order and judgment granted defendant's motion for summary judgment dismissing the complaint.

 

Beaton v. Jones


Brindisi, Murad, Brindisi & Pearlman, LLP, Utica (Anthony J. Brindisi Of Counsel), For Plaintiff-Appellant.
Rossi And Murnane, New York Mills (Vincent J. Rossi, Jr., Of Counsel),

For Defendant-Respondent.

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

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when the vehicle he was driving collided with a vehicle owned and operated by defendant. Supreme Court properly granted 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). We note at the outset that plaintiff has abandoned his contention that he sustained a permanent loss of use, as set forth in his bill of particulars, inasmuch as he failed to address that category of serious injury in his brief on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984).

Contrary to the contention of plaintiff, we conclude that defendant met his burden by establishing as a matter of law that plaintiff did not sustain a significant limitation of use or permanent consequential limitation of use, two of the remaining three categories of serious injury that plaintiff allegedly sustained in the accident. "For [those] two statutory categories, [the Court of Appeals] has held that [w]hether a limitation of use or function is significant or consequential (i.e., important . . .) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part' " (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). In support of his motion, defendant submitted, inter alia, certified copies of plaintiff's emergency room records and the affirmations of two medical experts, one of whom examined plaintiff on behalf of defendant. Defendant thereby established that plaintiff sustained only a mild injury as a result of the accident and that there was no objective medical evidence that plaintiff sustained a significant or permanent injury (see Parkhill v Cleary, 305 AD2d 1088, 1088-1089; Sewell v Kaplan, 298 AD2d 840).

In opposition to defendant's motion, plaintiff submitted the affirmation of his treating neurosurgeon, who opined that plaintiff sustained "a head injury, loss of range of motion in the cervical spine, post-concussive syndrome, whiplash disorder and a C5-6 herniated disc." That neurosurgeon did not, however, provide a numeric percentage of plaintiff's loss of range of motion or a qualitative assessment that "has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure, 98 NY2d at 350). Plaintiff also submitted the affirmation of a neurosurgeon who examined plaintiff at the request of his attorney. That neurosurgeon stated that his physical examination of plaintiff demonstrated that plaintiff had sustained approximately 75% loss of range of motion of the extension of his cervical spine. While "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury" (id.), here the neurosurgeon examined plaintiff more than three years after the accident and did not relate the loss of extension to the herniated disc or any other objective finding (cf. Harris v Carella, 42 AD3d 915, 916-917), nor did he explain the absence of any such findings of restrictions in neck motion for 2½ years before his exam (see generally Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670). Furthermore, the views of plaintiff's experts with respect to plaintiff's head pain, including one expert's diagnosis of "occipital neuralgia,"were based upon plaintiff's subjective complaints only, and thus were insufficient to defeat defendant's motion (see Jaromin v Northrup, 39 AD3d 1264, 1265; Kinchler v Cruz, 22 AD3d 808). Also contrary to the contention of plaintiff, he failed to raise an issue of fact whether his posttraumatic stress disorder is related to the accident, to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

Defendant also met his burden with respect to the 90/180 category, the third category of serious injury allegedly sustained by plaintiff. Defendant met his initial burden with respect to that category, and plaintiff failed "to submit the requisite objective evidence of a medically determined injury or impairment of a non-permanent nature' . . . and [failed] to establish that the injury caused the alleged limitations on plaintiff's daily activities" (Calucci v Baker, 299 AD2d 897, 898).

Bennett v. Muniz

Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene Of Counsel), For Defendant-Appellant.
Cellino & Barnes, P.C., Rochester (Charles F. Burkwit Of Counsel), For Plaintiff-Respondent.


It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, plaintiff's motion for a directed verdict is denied in part, the verdict is set aside and a new trial is granted on the issues of serious injury, causation and damages.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle he was driving collided with a vehicle driven by defendant's daughter. Following a jury trial, judgment was entered awarding plaintiff damages in the amount of $285,000, plus interest, costs and disbursements. We agree with defendant that Supreme Court erred in granting that part of plaintiff's motion for a directed verdict on the issue of serious injury based upon its determination that the injury to plaintiff's ankle constituted a significant limitation of use and a permanent consequential limitation of use as a matter of law within the meaning of Insurance Law § 5102 (d). "In order to direct a verdict in favor of the plaintiff, the court must view the evidence in the light most favorable to the defendant[] and conclude [that] there is no rational process by which the fact trier could base a finding in favor of' " the defendant (Pecora v Lawrence, 28 AD3d 1136, 1137, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). "Whether a limitation of use or function is significant' or consequential' (i.e., important . . .) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, 84 NY2d 795, 798; see Howell v Holloway, 17 AD3d 1117, 1118). Indeed, the Court of Appeals has written that "whether there has been a significant' limitation of use of a body function or system . . . can . . . be a complex, fact-laden determination" (Pommells v Perez, 4 NY3d 566, 571). Here, the parties presented conflicting evidence with respect to, inter alia, the degree of permanent loss to plaintiff's range of ankle motion, and we conclude on the record before us that there is a triable issue of fact whether the injury to plaintiff's ankle was significant or consequential (see generally Howell, 17 AD3d at 1118) and whether plaintiff's back injury was a qualifying serious injury.

Byam v. Waltuch

 

Kaplan & Kaplan, Brooklyn, N.Y. (Cary H. Kaplan of counsel), for appellant.
Corigliano, Geiger, Verrill & Brandwein, Jericho, N.Y. (Kathleen M. Geiger of counsel),          for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated April 16, 2007, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's treating physician was without any probative value since it is clear that the physician relied on the unsworn reports of others (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The affidavit of the plaintiff's treating chiropractor, Scott H. Leist, failed to address the findings of the defendant's examining radiologist, who concluded that the injuries to the plaintiff's cervical spine, lumbar spine, and left knee were the result of degeneration and not because of the subject accident. This failure rendered speculative Leist's opinion that the plaintiff's spine and left knee injuries and limitations, as set forth in his affidavit, were the result of the subject accident (see Giraldo v Mandanici, 24 AD3d 419; Lorthe v Adeyeye, 306 AD2d 252; Pajda v Pedone, 303 AD2d 729; Ginty v MacNamara, 300 AD2d 624). Moreover, Leist failed to adequately address the fact that the plaintiff was involved in a prior accident in 1998, in which she claimed to have injured her lumbar spine, cervical spine, and left knee. This failure further rendered speculative any conclusion that the injuries or limitations he noted with respect to the plaintiff's cervical spine, lumbar spine, or left knee were the result of the subject accident (see Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601).

The magnetic resonance imaging reports of the plaintiff's left knee, cervical spine, and lumbar spine, as authored by Dr. Richard Rizzuti, merely established that, as of October 2004, the plaintiff showed evidence of herniated discs at C5-6 and L3-4, as well as a sprain of the anterior cruciate ligament in the left knee. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v De Rose, 35 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). Strains and sprains are not considered serious injuries under Insurance Law § 5102(d) (see Washington v Cross, 48 AD3d 457). Moreover, Rizzuti did not opine as to the cause of the injuries he identified (see Collins v Stone, 8 AD3d 321, 322).

Finally, the plaintiff failed to proffer competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
RIVERA, J.P., LIFSON, MILLER, CARNI and ENG, JJ., concur.

Cartha v. Quin


Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck
(Elizabeth M. Hecht of counsel), for appellants.
Finkelstein & Partners, LLP, Newburgh (Kristine M. Cahill of counsel), for respondent.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered November 1, 2007, which denied defendants-appellants' motion for summary judgment dismissing the complaint for lack of a serious injury as required by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. Upon a search for the record, the Clerk is directed to enter judgment dismissing the complaint in its entirety.

Plaintiff's medical reports, while indicating disc and elbow injuries, do not correlate the range-of-motion measurements therein to a norm, or otherwise show how the alleged injuries to plaintiff's back and arm resulted in significant limitations in their use, and thus fail to rebut defendants' prima facie showing that plaintiff did not suffer any permanent or significant injuries as a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Although plaintiff's elbow required surgery, which was performed eight months after the accident, and he apparently missed work as a result, the record establishes that the condition was corrected by the surgery (see Baker v Thorpe, 43 AD3d 535 [2007]). Nor does plaintiff adduce evidence of any substantial interference with his usual and customary daily activities for 90 of the first 180 days following the accident. He returned to work immediately after the accident, and his surgery, followed by his absence from work, did not fall within 90/180 time frame. Even if they had been substantiated, neither plaintiff's claim of a reduced work schedule following the accident (see Lopez v Simpson, 39 AD3d 420 [2007]), nor the minor curtailment of his usual activities during 90/180 time frame (see Blackmon v Dinstuhl, 27 AD3d 241 [2006]), would satisfy the statute.

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

Djetoumani v. Transit, Inc.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto and Jason Levine of counsel), for appellants.
Budin, Reisman, Kupferberg, New York, N.Y. (Scott B.
Schwartz, PLLC, of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated June 19, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Diabate Djetoumani against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants established their entitlement to summary judgment dismissing the complaint insofar as asserted by the plaintiff Diabate Djetoumani by demonstrating through the reports of their examining physicians that Djetoumani did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, Djetoumani raised a triable issue of fact as to whether he sustained a serious injury on the basis of the affirmations of his treating and examining physicians demonstrating that he sustained, among other things, a torn rotator cuff as a result of the accident, and that those injuries resulted in a permanent consequential and/or a significant limitation of use of his right shoulder as a result of the subject accident. Although the initial physical examination by Djetoumani's treating physician did not reveal a limitation in the range of motion of his right shoulder, magnetic resonance imaging, performed two weeks later, demonstrated a rotator cuff tear, a tear of the anterior glenoid labrum, and a partial tear of the biceps tendon. Magnetic resonance imaging reports showing such tears are not evidence of serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injuries, and the duration of these tears does not, alone, establish a serious injury (see Nannarone v Ott, 41 AD3d 441, 442; Yakubov v CG Trans Corp., 30 AD3d 509, 510; Kearse v New York City Tr. Auth., 16 AD3d 45, 49). Here, however, the requisite medical finding was provided by the affirmation and report of Louis Rose, Djetoumani's treating orthopedist, which set forth range-of- motion findings with respect to Djetoumani's right shoulder.

Contrary to the defendants' argument, the failure of Dr. Rose to compare his range- of-motion findings to the norm does not, on the record presented here, preclude a finding of a triable issue of fact. In general, in the absence of an assertion of the normal range of motion, an expert's finding as to the plaintiff's range of motion is insufficient to establish the significant or consequential limitation of use necessary to sustain a claim (see Toure v Avis Rent a Car Systems, Inc., 98 NY2d at 353) because it requires the court to speculate as to the meaning of the physical finding (see Nociforo v Penna, 42 AD3d 514, 515; Frey v Fedorciuc, 36 AD3d 587, 588; Powell v Alade, 31 AD3d 523; Manceri v Bowe, 19 AD3d 462, 463). Here, however, no such speculation is necessary because the applicable normal ranges of motion were set forth in the reports of the defendants' examining physicians that were submitted in support of the motion. A statement by an expert that is put forward by a party in litigation constitutes an informal judicial admission (see Chock Full O'Nuts Corp. v NRP LLC 1, 47 AD3d 189; Matter of College Point Indus. Park Urban Renewal Project, 73 AD2d 932, 933), that is admissible against, although not binding upon, the party that submitted it (see Matter of Liquidation of Union Indem. Ins. Co., 89 NY2d 94, 103; Stauber v Brookhaven Nat. Laboratory, 256 AD2d 570, 570-571; Prince, Richardson on Evidence § 8-219, at 529-530 [Farrell 11th ed.]; Fisch, New York Evidence § 803, at 475-476 [2d ed.]). Thus, just as a nonmoving plaintiff in a serious injury case may rely upon the unsworn report of the plaintiff's treating physician once it has been submitted by the moving defendant (see Raso v Statewide Auto Action, Inc., 262 AD2d 387, 387-388; Vignola v Varicchio, 243 AD2d 464; Pagano v Kingsbury, 182 AD2d 268, 271), a nonmoving plaintiff may rely upon the statement by the moving defendant's expert of the applicable normal range of motion.

Finally, contrary to the defendants' contentions, there was no lengthy gap in Djetoumani's treatment (see Pommells v Perez, 4 NY3d 566, 574; Seecoomar v Ly, 43 AD3d 900, 901).
SPOLZINO, J.P., SANTUCCI, DILLON and BALKIN, JJ., concur.

Endzweig-Morov v. MV Transp., Inc.


Harmon, Linder & Rogowsky (Mitchell Dranow, Mineola, N.Y., of counsel), for appellants.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y.
(Stephen F. Zaklukiewicz of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their notice of appeal and brief, from so much an order of the Supreme Court, Kings County (Balter, J.), dated December 10, 2006, as granted those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Zoya Endzweig-Morov and Leah Aminov on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants met their prima facie burden of showing that neither the plaintiff Zoya Endzweig-Morov (hereinafter Zoya), nor the plaintiff Leah Aminov (hereinafter Leah), sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiffs failed to raise a triable issue of fact. The affirmed medical reports prepared by Aric Hausknecht, Zoya and Leah's examining neurologist, were without any probative value, since he clearly relied on the unsworn medical reports of others in reaching his conclusions therein (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The medical reports prepared by David Khasidy and Howard Baum also were insufficient to raise a triable issue of fact, since they were not based on recent examinations of Zoya or Leah (see Amato v Fast Repair Inc., 42 AD3d 477; Ali v Mirshah, 41 AD3d 748; Beckett v Conte, 176 AD2d 774). The chiropractic report dated October 14, 2003, concerning Zoya, and the medical reports prepared by Edward Weiland concerning both Zoya and Leah were unaffirmed and thus without any probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Pena, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). The magnetic resonance imaging reports prepared by Joseph Leadon merely showed that, as of September 14, 2003, Zoya had a bulging disc at L5-S1, and Leah had a bulging disc at L3-4, a protrusion at L4-5, and a herniated disc at L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v De Rose, 35 AD3d 407; Yakubov v CG Trans Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Diaz v Turner, 306 AD2d 241). Moreover, Leadon did not offer any opinion on the cause of the disc pathology that was noted in the magnetic resonance imaging reports (see Collins v Stone, 8 AD3d 321, 322).
SPOLZINO, J.P., RITTER, DILLON, BALKIN and LEVENTHAL, JJ., concur.

Jones v. Gooding

 

Law Offices of Adam M. Thompson, P.C., New York, N.Y., for appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Kings County (Rivera, J.), dated May 19, 2006, which, inter alia, granted that branch of the defendant's renewed motion which was, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint.

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

The Supreme Court properly granted that branch of the defendant's renewed motion which was, in effect, pursuant to CPLR 4401 for judgment as a matter of law since "upon the evidence presented, there [was] no rational process by which the fact trier could" find that the plaintiff sustained a serious injury (Szczerbiak v Pilat, 90 NY2d 553, 556; see Crespo v Kramer, 295 AD2d 467, 468). Since the plaintiff missed only one day of work as a result of the injuries he sustained in the subject motor vehicle accident, he failed to establish a prima facie case that he suffered a medically-determined injury which prevented him from "performing substantially all of the material acts which constitute[d] [his] usual and customary daily activities" for at least 90 of the first 180 days following the accident (Insurance Law § 5102[d]; see Crespo v Kramer, 295 AD2d at 468).
FISHER, J.P., MILLER, DILLON and McCARTHY, JJ., concur.

Kneeppel v. Casem

Appeal from an order of the Supreme Court, Niagara County (Timothy J. Walker, J.), entered January 8, 2007 in a personal injury action. The order granted the motion of defendants Norman D. McKay and Patty E. McKay for summary judgment dismissing the complaint against them.


Hodgson Russ LLP, Buffalo (Lauren M. Monforte Of Counsel), For Plaintiffs-Appellants.
Law Offices Of Laurie G. Ogden, Buffalo (Daniel J. Caffrey Of Counsel), For Defendants-Respondents.


It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint against defendants Norman D. McKay and Patty E. McKay, as amplified by the bill of particulars, with respect to the permanent consequential limitation of use of a body organ or member category of serious injury within the meaning of Insurance Law § 5102 (d) and with respect to the derivative cause of action and as modified the order is affirmedwithout costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Christopher Kneeppel (plaintiff) when the vehicle driven by him was rear-ended by a vehicle driven by defendant Patty E. McKay and propelled into oncoming traffic, whereupon plaintiff's vehicle collided with a vehicle driven by defendant Benjamin R. Casem. Supreme Court erred in granting the motion of Patty McKay and defendant Norman D. McKay, her husband (defendants), for summary judgment dismissing the complaint against them on the ground that plaintiff did not sustain a serious injury in the accident within the meaning of Insurance Law § 5102 (d). Although defendants met their initial burden by submitting evidence establishing that plaintiff's alleged injuries sustained in the accident were preexisting, we conclude that plaintiffs raised an issue of fact whether plaintiff sustained a permanent consequential limitation of useof his cervical and lumbar spine as a result of the accident by submitting evidence that, inter alia, "address[ed] defendant[s'] claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580). We therefore modify the order accordingly. In opposition to defendants' motion, plaintiffs submitted the affidavit of plaintiff's treating chiropractor sworn to in October 2006, in which the chiropractor stated that he began treating plaintiff in 1996. The chiropractor set forth the normal range of cervical movement and compared it to plaintiff's range of cervical movement in 1996 and again in 2001, approximately one week after the accident. According to the chiropractor, the extension of plaintiff's cervical spine "had decreased significantly" following the accident. Plaintiffs also submitted the affidavit of plaintiff's treating orthopedic surgeon, who stated that plaintiff "clearly suffered a trauma to his lower back" as a result of the accident and that "the exacerbation of the L4-5 and L5-S1 discs . . . [was] causally related to the motor vehicle accident." The orthopedic surgeon also noted plaintiff's "limited lumbar flexion range of motion." We thus conclude that plaintiffs raised an issue of fact to defeat defendants' motion with respect to that category of serious injury (cf. id. at 579-580).

Marrache v. Akron Taxi Corp.



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
The Yankowitz Law Firm, P.C., Great Neck, N.Y. (Robert P. Baquet of counsel), for respondents.
John P. Humphreys, New York, N.Y. (Eric P. Tosca of counsel), for defendants.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Akron Taxi Corp. and Curtis Oppong Maison appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated July 20, 2007, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Haim Marrache did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the plaintiffs to the appellants, the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted, and, upon searching the record, summary judgment is awarded to the defendants Parties Events & More, David Thomas Stewart II, and Entertaining Ideas, Inc., dismissing the complaint insofar as asserted against them.

The defendants Akron Taxi Corp. and Curtis Oppong Maison (hereinafter the appellants) met their prima facie burden of showing that the plaintiff Haim Marrache (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition, the injured plaintiff failed to raise a triable issue of fact. The vast majority of the submissions of the injured plaintiff were unsworn, and thus without any probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). The submissions of expert physicians Oksana Levitansky and Joyce Goldenberg were insufficient to raise a triable issue of fact. Neither expert addressed the findings of the appellants' examining radiologist, who concluded that the injured plaintiff suffered from degenerative disc disease in the C2 through C7 levels of her cervical spine. This failure rendered speculative Levitansky and Goldenberg's respective conclusions that the injuries and limitations that they noted were caused by the subject accident (see Giraldo v Mandanici, 24 AD3d 419; Lorthe v Adeyeye, 306 AD2d 252; Pajda v Pedone, 303 AD2d 729; Ginty v MacNamara, 300 AD2d 624).

The magnetic resonance imaging report by Jeffrey Chess concerning the injured plaintiff's cervical spine merely showed that as of June 23, 2005, the injured plaintiff appeared to have herniated discs at C2-3 and C3-4, as well as bulging discs at C3 through C7. The mere existence of a herniated or bulging disc, and even radiculopathy, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sharma v Diaz, 48 AD3d 442; Shvartsman v Vildman, 47 AD3d 700; Patterson v NY Alarm Response Corp., 45 AD3d 656; Mejia v DeRose, 35 AD3d 407, 408). Further, Chess did not offer any opinion as to how the disc herniations and bulges were caused (see Collins v Stone, 8 AD3d 321, 322). The self-serving affidavit of the injured plaintiff was insufficient to raise a triable issue of fact (see Shvartsman v Vildman, 47 AD3d 700; Fisher v Williams, 289 AD2d 288).

Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

Moreover, this Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Colon v Vargas, 27 AD3d 512, 514). Upon searching the record, we thus award summary judgment to the defendants Parties Events & More, David Thomas Stewart II, and Entertaining Ideas, Inc., dismissing the complaint insofar as asserted against them (see CPLR 3212[b]).
RIVERA, J.P., LIFSON, MILLER, CARNI and ENG, JJ., concur.

Marshall v. Institute For Community Living, Inc.


O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y.
(Eileen M. Baumgartner of counsel), for appellants.
Burger & Perrotta, Brooklyn, N.Y. (Charles H. Burger of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated June 11, 2007, which denied their motion for summary judgment dismissing the complaint on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and that they were not at fault in causing the accident.

ORDERED that the order is affirmed, with costs.

The plaintiff was struck by a van owned by the defendant Institute for Community Living, Inc., and operated by the defendant Jason Ruben Borrero, as he was crossing Flatbush Avenue outside a crosswalk, a short distance from its intersection with Empire Boulevard. After the plaintiff commenced the present action, the defendants moved for summary judgment dismissing the complaint, both on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and that the accident was not proximately caused by any negligence on their part.

The defendants' motion papers did not adequately address the plaintiff's claim, clearly set forth in his verified bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the accident. The defendants' examining neurologist and orthopedist conducted their independent examinations of the plaintiff over two years after the subject accident. Neither expert related their findings concerning this category of serious injury for the period of time immediately following the accident (see Faun Thai v Butt, 34 AD3d 447; Sayers v Hot, 23 AD3d 453, 454).

Additionally, the evidence submitted by the defendants, including the deposition testimony of the plaintiff and the defendant driver, failed to establish, as a matter of law, that the defendant driver was not operating the van in a negligent manner and that this negligence was not a proximate cause of the subject motor vehicle accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Under these circumstances, it is not necessary to consider whether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact as to either of the grounds advanced by the defendants (see Smalls v AJI Indus., Inc., 10 NY3d 733). PRUDENTI, P.J., FISHER, MILLER and BALKIN, JJ., concur.

Prestol v. McKissock


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

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered September 4, 2007, which denied defendant Calvo's motion (and the remaining defendants' cross 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), unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiff's claim that she sustained a medically determined injury of a non-permanent nature that prevented her from performing substantially all of her usual and customary daily activities for 90 of the 180 days immediately following the accident, and, upon a search of the record, to grant the cross motion to the same extent, and otherwise affirmed, without costs.

The only evidence as to plaintiff's claim of injury in the 90/180 period is her own deposition testimony that she was confined to bed and home and unable to work for approximately two months, i.e., 60 days (see Furrs v Griffith, 43 AD3d 389 [2007]).

As to plaintiff's remaining claims, while defendants met their initial burden on their motions, in opposition, plaintiff raised a triable issue of fact through her treating chiropractor's affidavit, which reported objective medical findings of range of motion limitations contemporaneous with the accident and on recent examination and adequately explained the reason for the three-year gap in plaintiff's treatment (see Sung v Mihalios, 44 AD3d 500 [2007]; Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]). By resubmitting defendants' expert orthopedist's affirmed report, plaintiff also sufficiently countered defendants' argument that her injuries reflected preexisting degenerative disease (see Pommells v Perez, 4 NY3d 566, 577-578 [2005]).

Upon a search of the record, plaintiff's 90/180 claim is also dismissed as against defendants Carol I. McKissock and Jonathon P. McKissock (see Brewster v FTM Servo, Corp., 44 AD3d 351

In the Matter of Phoenix Insurance Company v. Golanek


Darienzo & Lauzon (Montfort, Healy, McGuire & Salley, Garden
City, N.Y. [Donald S. Neumann, Jr.], of counsel), for additional
respondents-appellants.
Karen C. Dodson, Melville, N.Y. (Richard P. McArthur of
counsel), for petitioner-respondent.
Martin, Fallon & MullÉ, Huntington, N.Y. (Richard C. MullÉ
and Stephen P. Burke of counsel), for
respondents-respondents State Farm
Mutual Insurance Company and
Howard Ralley.

DECISION & ORDER

In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, GEICO and Geoffrey G. Hall appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Shifrin, Ct. Atty. Ref.), entered July 13, 2007, which, after a hearing, granted the petition and permanently stayed the arbitration.

ORDERED that the order and judgment is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the petition is denied, and the proceeding is dismissed.

This matter arises out of an accident that occurred when the offending vehicle, identified by an eyewitness as a white pickup truck, moved from the right lane of the roadway into the center lane, striking a vehicle, and forcing that vehicle into the left lane, where it struck a third vehicle owned and operated by Walter Golanek and insured by Phoenix Insurance Company, s/h/a Travelers Property Casualty (hereinafter Phoenix). The driver of the offending vehicle left the scene of the accident without stopping. The police accident report prepared in connection with the accident set forth a license plate number for the offending vehicle, and stated that the number had been observed by the eyewitness. The license plate number appearing in the report was found to correspond to a white pickup truck registered to Geoffrey G. Hall, who was insured by GEICO. Hall denied involvement in the accident. After Golanek filed an uninsured motorist claim against Phoenix and demanded arbitration of the claim, Phoenix commenced this proceeding, seeking a permanent stay of arbitration.

At a framed-issue hearing on the question of whether Hall's vehicle was involved in the accident, the eyewitness testified that after the accident, she and her mother followed the offending vehicle, and, with her mother's help, she wrote down that vehicle's license plate number. The eyewitness then stopped, got out of her car, and ran back toward the site of the accident. Along the way, she encountered a police officer and gave him the license plate number, which the officer wrote in his memo book. The eyewitness testified, albeit equivocally, that she observed the officer writing the number down, and confirmed that he had recorded the number accurately.

There was no evidence at the framed-issue hearing as to whether the officer to whom the eyewitness spoke was one of the two police officers who responded to the scene of the accident, or whether he was involved in preparing the police accident report. Neither the paper on which the eyewitness wrote the license plate number nor the police officer's memo book was offered into evidence at the hearing, and neither the officer who spoke with the eyewitness nor the officer who prepared the police accident report testified at the hearing.

At the conclusion of the framed-issue hearing, Phoenix sought to introduce into evidence the police accident report, which identified Hall's vehicle, by its license plate number, as the offending vehicle. The referee ruled the report to be admissible pursuant to the present sense impression exception to the hearsay rule. The referee determined that Hall's truck was the vehicle involved in the accident, granted Phoenix's petition, and permanently stayed the arbitration.

Contrary to the contentions of the respondents on this appeal, this Court's decision in Matter of Irizarry v Motor Veh. Indem. Corp. (287 AD2d 716) does not require the conclusion that the police accident report was admissible under the present sense impression exception. First, the report made by the eyewitness to the police officer she encountered was not based on any present sense she had of the offending vehicle's license plate number. After she wrote that number on a piece of paper, she was no longer relying upon a present sense of the number, but was relying entirely on the contents of her own writing. Thus, the officer's memo book, and certainly the police accident report generated sometime later, did not "reflect[] a present sense impression rather than a recalled or recast description of events that were observed in the recent past" (People v Vasquez, 88 NY2d 561, 575 [emphasis in original]).

Moreover, "the key components of present sense impressions' are contemporaneity and corroboration" (id.). While the reports by the witnesses in Irizarry were "made substantially contemporaneously' with the observation" of the license plate number of the offending vehicle (Matter of Irizarry v Motor Veh. Indem. Corp., 287 AD2d at 717, quoting People v Brown, 80 NY2d 729, 734), the evidence at the hearing in this case did not establish how much time elapsed between the eyewitness's observation of the license plate and her statement to the police officer, or how much additional time elapsed between that statement and the preparation of the police accident report. Furthermore, the evidence of corroboration, consisting of the eyewitness's identification of the offending vehicle as a white pickup truck, was significantly less detailed than that presented in Irizarry, where the injured party identified the specific model of the vehicle that struck him. Accordingly, the police report should not have been admitted pursuant to the present sense impression exception.

Contrary to the alternative contention of the respondents on appeal, the police accident report was not admissible pursuant to the past recollection recorded exception to the hearsay rule. A memorandum of a past recollection recorded is admissible only when, inter alia, "the witness can presently testify that the record correctly represented his knowledge and recollection when made" (People v Taylor, 80 NY2d 1, 8). The eyewitness did not give, and could not have given, any such testimony regarding the police report, since she was not present when it was prepared. Although there was some evidence at the hearing that the eyewitness verified that the police officer to whom she spoke recorded the license plate number accurately in his memo book, there was no evidence as to how the information in the memo book came to appear in the police accident report. Thus, "there can be no more than supposition on the critical question of whether what was observed and [reported by the eyewitness] corresponded with what was heard by the [author of the police report] and written down" (id. at 10).

Since the police accident report was improperly admitted into evidence, and there was no other competent evidence that Hall's vehicle was involved in the subject accident, Phoenix's petition to permanently stay arbitration of Golanek's uninsured motorist claim should have been denied, and the proceeding dismissed.

Worth Construction Co., Inc. v, Admiral Insurance Company


Leonard Kessler, for appellant.
Richard Imbrogno, for respondent.

PIGOTT, J.:

Clayton Park Development, LLC, owner of real property situated in White Plains, New York, retained plaintiff Worth Construction Co., Inc. as general contractor for the construction of an apartment complex. Worth subcontracted with Pacific Steel, Inc. for construction of a staircase and handrailings. As part of the subcontract, Pacific provided commercial general liability insurance through defendant Farm Family Casualty Insurance Company naming Worth and Clayton Park Development as additional insureds.

Pacific's work at the site involved the fabrication and installation of a staircase, which consisted of steel pan stairs and handrailings. Each individual stair was comprised of two "stringers" (or sides) welded to a steel pan. After Pacific installed the stairs, the project was turned over to Worth, who hired a concrete subcontractor to fill the pans. Once the concrete had been poured and walls were erected around the stairs, Pacific was to return to the site to complete its portion of the project by affixing the handrailings to the walls.

In November 2001, after the stairs had been installed but before the walls had been raised, Michael Murphy, a journeyman iron worker employed by Fasciano Iron Works Inc., sustained injuries when he slipped on fireproofing that had been applied to the stairs by subcontractor Central Enterprises. Pacific played no role in either contracting for or applying the fireproofing, nor did it subcontract with Fasciano for the performance of any work at the site.

Murphy commenced a personal injury action against Clayton Park Development as owner of the premises and Worth as the general contractor. Because the complaint alleged that Murphy was injured on the staircase installed by Pacific, Worth forwarded a copy of the complaint to Farm Family demanding defense and indemnification under the terms of the policy. When Farm Family did not respond to Worth's demand, Worth commenced a third-party action against Pacific seeking contribution and indemnification.

Worth also commenced a declaratory judgment action against Farm Family, seeking defense and indemnification in the underlying action and reimbursement of attorneys' fees it had expended to date in defense of the action.

The additional insured endorsement states in pertinent part:

"WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured [Worth] but only with respect to liability arising out of your [Pacific's] operations or premises owned by or rented to you" (emphasis supplied).


The policy also defines "Your work" as "(a) Work or operations performed by you or on your behalf; and (b) Materials, parts or equipment furnished in connection with such work or operations."

Both parties moved for summary judgment in the declaratory judgment action. Supreme Court initially declared that Farm Family was obligated to defend and indemnify Worth under the terms of the policy and ordered it to reimburse Worth for the attorneys' fees it incurred in defending the underlying action.

However, while the parties to the declaratory judgment action were awaiting the court's decision in that action, Pacific moved for summary judgment dismissing Worth's third-party complaint in the underlying action. In its response to that motion, Worth conceded that any negligence claim it asserted against Pacific in the third-party action lacked factual merit and should be dismissed.

Once Supreme Court dismissed Worth's third-party action against Pacific, Farm Family moved to renew its motion in the declaratory judgment action, asserting that, by its admissions, Worth had conceded that Murphy's accident did not arise out of Pacific's work or operations. Supreme Court granted Farm Family's motion, modified its previous decision and held that Worth's concession that Pacific was not negligent established as a matter of law that Murphy's accident did not arise out of Pacific's operations and therefore Farm Family was not required to defend or indemnify Worth under the terms of the policy.

In a 3-2 decision, the Appellate Division modified the order of Supreme Court, holding that, based on the definition of "Your work" in the policy, it was immaterial, for purposes of deciding additional insured coverage, whether Pacific had completed the installation of the stairs, whether its installation was negligent or whether Pacific or one of its contractors was Murphy's employer (40 AD3d 423, 425 [1st Dept 2007]). Rather, for coverage purposes, it was "sufficient that [Murphy's] injury was sustained on the stairs" (id. citing Impulse Enters./F & V Mech Plumbing and Heating v St. Paul Fire & Mar. Ins. Co., 282 AD2d 266, 267 [1st Dept 2001]). We now reverse and reinstate the order of Supreme Court awarding Farm Family summary judgment.

An insurer's duty to defend "arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim" (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997]). This standard applies equally to additional insureds and named insureds (see BP Air Conditioning Corp. v One Beacon Ins. Group, 8 NY3d 708, 715 [2007]).

Here, the additional insured endorsement states that Worth is an additional insured "only with respect to liability arising out of [Pacific's] operations." The phrase "arising out of" has been interpreted by this Court to "'mean originating from, incident to, or having connection with'" (Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472 [2005] quoting Aetna Cas. & Sur. Co. v Liberty Mut. Ins. Co., 91 AD2d 317, 320-321 [4th Dept 1983]), and requires "only that there be some causal relationship between the injury and the risk for which coverage is provided" (Maroney, 5 NY3d at 572).

Worth contends that the simple fact that Murphy slipped on the staircase establishes as a matter of law that his accident arose out of Pacific's work because the staircase was part of the "materials" that Pacific was utilizing to fulfill its subcontract. Generally, the absence of negligence, by itself, is insufficient to establish that an accident did not "arise out of" an insured's operations (see Aetna Cas. & Sur. Co. v National Union Fire Ins. Co., 228 AD2d 385, 386 [1st Dept 1996]; Lim v Atlas-Gem Erectors Co., 225 AD2d 304, 305 [1st Dept 1996]). The focus of a clause such as the additional insured clause here "is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained" (Impulse Enters., 282 AD2d at 267).

Here, it is evident that the general nature of Pacific's operations involved the installation of a staircase and handrails. An entirely separate company was responsible for applying the fireproofing material. At the time of the accident, Pacific was not on the jobsite, having completed construction of the stairs, and was awaiting word from Worth before returning to affix the handrails. The allegation in the complaint that the stairway was negligently constructed was the only basis for asserting any significant connection between Pacific's work and the accident. Once Worth admitted that its claims of negligence against Pacific were without factual merit, it conceded that the staircase was merely the situs of the accident. Therefore, it could no longer be argued that there was any connection between Murphy's accident and the risk for which coverage was intended.

Nor does the fact that the stairs constituted "materials, parts or equipment furnished in connection with [Pacific's] work or operations" under the "Your work" provision, entitle Worth to defense and indemnification where, as here, Worth conceded that the stairs themselves were not a proximate cause of plaintiff's injury.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the order and judgment of Supreme Court should be reinstated.
* * * * * * * * * * * * * * * * *
Order, insofar as appealed from, reversed, with costs, and order and judgment of Supreme Court, New York County, reinstated. Opinion by Judge Pigott. Chief Judge Kaye and Judges Ciparick,
Graffeo, Read, Smith and Jones concur.

Lamb v. Rajinder

 

Baker, McEvoy, Morrissey & Moskovits, P.C., New York

(Stacy R. Seldin of counsel), for appellants.

George Poulos, Astoria, for respondent.

 

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered November 29, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 

Defendants failed to meet their initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmed report of defendants' examining neurologist failed to set forth the objective tests performed supporting his claims that there was no limitation of range of motion, and their otologist's affirmed report, finding, inter alia, that plaintiff's external auditory canals and tympanic membranes were within normal limits, suffered from the same infirmity (see Nix v Yang Gao Xiang, 19 AD3d 227 [2005]). Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion (see Offman v Singh, 27 AD3d 284 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 

Cornelius v. Cintas Corp.

 

Cullen and Dykman, LLP, Brooklyn, N.Y. (Patrick Neglia and

Joseph Delfino of counsel), for appellants.

Dominic Recchia (Arnold E. DiJoseph, P.C., New York, N.Y.,

of counsel), for respondent.

 

DECISION & ORDER

 

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Cullen, J.), dated June 21, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff David Cornelius on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff David Cornelius is granted.

 

The defendants met their prima facie burden of showing that the plaintiff David Cornelius (hereinafter David) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, David failed to raise a triable issue of fact.

 

The submissions of Leon Bernstein, David's treating orthopedic surgeon, were insufficient to raise a triable issue of fact. Bernstein's projections of permanent injuries and limitations had no probative value in the absence of a recent examination (see Ali v Mirshah, 41 AD3d 748; Marziotto v Striano, 38 AD3d 623; Elgendy v Nieradko, 307 AD2d 251). Furthermore, although Bernstein's report provided range of motion findings, he failed to compare any of these findings to what is normal (see Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996), and he failed to acknowledge in his reports or affirmation that David was involved in a prior accident in which he injured his back and neck. As a result, Bernstein's conclusion in his report dated September 20, 2005, that the injuries and limitations in David's lumbar spine were caused by the subject accident, was speculative (see Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470).

 

The "updated narrative report" of Aron Goldman, one of David's treating physicians, was insufficient to raise a triable issue of fact. This medical report merely contained conclusory allegations tailored to meet statutory requirements (see Slavin v Associates Leasing, 273 AD2d 372; Zargary v Finisia Enters., 205 AD2d 683). Furthermore, Goldman's conclusions that David sustained "significant limitations" in the use of the cervical and lumbar regions of his spine and his left knee as a result of the subject accident were speculative in light of the fact that Goldman never acknowledged David's prior accident (see Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470), and never addressed the findings of the defendants' examining radiologist who concluded that David suffered from degenerative conditions in his cervical spine, lumbar spine, and left knee that predated the subject accident (see Giraldo v Mandanici, 24 AD3d 419; Lorthe v Adeyeye, 306 AD2d 252; Pajda v Pedone, 303 AD2d 729; Ginty v MacNamara, 300 AD2d 624).

Moreover, neither David nor his treating physicians adequately explained the lengthy gap in his treatment between the time he stopped treatment in April 2004 and his most recent examination performed by Bernstein on August 31, 2005 (see Pommells v Perez, 4 NY3d 566; Wei-San Hsu v Briscoe Protective Sys., Inc., 43 AD3d 916; Bestman v Seymour, 41 AD3d 629; Albano v Onolfo, 36 AD3d 728).

 

The submission of David's magnetic resonance imaging reports merely established that, as of October and November 2003, he had a herniated nucleus pulposus at C5-6, bulging discs at C3 through C7, a linear meniscal tear of the posterior horn of the medial meniscus, and bulging discs at L3 through S1. The mere existence of a herniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583). No such objective medical evidence was submitted by David in opposition to the defendants' motion.

David also failed to set forth any competent medical evidence to establish that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).

 

FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Perdomo v. Scott

 

Martin, Fallon & Mulle, Huntington, N.Y. (Richard C. Mulle of counsel), for appellants.

Steven Cohn, P.C., Carle Place, N.Y. (Mitchell Goldklang of counsel), for respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated April 17, 2007, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Eulalio Perdomo and Maribel Navarro on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellants payable by the respondents, and those branches of the appellants' motion which were for summary judgment dismissing the complaint insofar as asserted by the respondents are granted.

 

The defendants met their prima facie burden of showing that neither the plaintiff Eulalio Perdomo nor the plaintiff Maribel Navarro sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 435; Gaddy v Eyler, 79 NY2d 955, 956-57). In opposition, Perdomo and Navarro failed to raise a triable issue of fact.

 

Perdomo and Navarro relied upon medical reports from their treating chiropractor. However, those reports were not competent evidence because they were not in affidavit form (see CPLR 2106; Coburn v Samuel, 44 AD3d 698; Laguerre v Chavarria, 41 AD3d 437; Kunz v Gleeson, 9 AD3d 480, 481). Moreover, those reports failed to show any range of motion limitations in Perdomo's spine or left shoulder, or in Navarro's spine, contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731; Borgella v D & L Taxi Corp., 38 AD3d 701).

 

Perdomo and Navarro also relied upon affirmed magnetic resonance imaging reports of Perdomo's lumbar spine and Navarro's cervical and lumbar spine. While the radiologists who authored those reports observed bulging discs, the mere existence of a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sharma v Diaz, 48 AD3d 442; Mejia v DeRose, 35 AD3d 407, 407-408; Yakubov v CG Trans Corp., 30 AD3d 509, 510; Cerisier v Thibiu, 29 AD2d 507, 508; Bravo v Rehman, 28 AD3d 694, 695).

Finally, Perdomo and Navarro failed to proffer competent medical evidence demonstrating that either of them sustained a medically-determined injury of a nonpermanent nature which prevented them, for 90 of the 180 days following the subject accident, from performing their usual and customary activities (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569, 570). SKELOS, J.P., SANTUCCI, COVELLO, McCARTHY and CHAMBERS, JJ., concur.

 

Rabolt v. Park

 

Tierney & Tierney, Port Jefferson, N.Y. (Stephen A. Ruland and

Jason Sanagin of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.

(Stacy R. Seldin of counsel), for

respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Doyle, J.), dated September 28, 2006, as granted the motion of the defendants John W. Keating and All Corporate Transport, Inc., for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, that branch of her cross motion which was for summary judgment on the issue of liability against those defendants.

 

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

The defendants John W. Keating and All Corporate Transport, Inc., met their initial prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact.

 

Initially, the chiropractic and physical therapy reports relied upon by the plaintiff were not competent evidence since the chiropractic report was not sworn to before a notary and the physical therapy reports were not affirmed (see Grasso v Angerami, 79 NY2d 813, 814-815; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747, 748; Nociforo v Pena, 42 AD3d 514; see also Kunz v Gleeson, 9 AD3d 480, 481; Santoro v Daniel, 276 AD2d 478). The hospital records, which were properly relied upon, merely showed that the plaintiff was diagnosed with a back sprain. Sprains and strains are not serious injuries within the meaning of Insurance Law § 5102(d) (see Washington v Cross, 48 AD3d 457; Hasner v Budnik, 35 AD3d 366, 367-368).

 

Neither the affirmation of Dr. David Khanan, nor his reports, raised a triable issue of fact. Dr. Khanan concluded in his affirmation dated July 12, 2006, that the plaintiff sustained permanent injuries as a result of the subject accident, yet his findings were based on examinations that occurred in 2004 and January 2005, and not upon a recent examination (see Morales v Theagene, 46 AD3d 775, 776; Ali v Mirshah, 41 AD3d 748, 749; Elgendy v Nieradko, 307 AD2d 251). The affirmation of Dr. Jean-Robert Desrouleaux also failed to raise a triable issue of fact. In that affirmation, also dated July 12, 2006, Dr. Desrouleaux concluded that the plaintiff's cervical range of motion was restricted as a result of the subject accident. However, in his medical report dated April 9, 2004, eight days after the subject accident, he noted that the plaintiff had normal range of motion in her neck (see Magarin v Kropf, 24 AD3d 733, 734; Brown v Tairi Hacking Corp., 23 AD3d 325, 326; Doran v Sequino, 17 AD3d 626; Cantanzano v Mei, 11 AD3d 500). Moreover, the submissions of both doctors further failed to acknowledge that the plaintiff was involved in a prior accident. These omissions rendered speculative the findings of both doctors that the injuries and limitations noted in the plaintiff's spine were the result of the subject accident (see Moore v Sarwar, 29 AD3d 752, 753; Tudisco v James, 28 AD3d 536, 537; Bennett v Genas, 27 AD3d 601, 602).

 

The magnetic resonance imaging reports concerning the plaintiff's cervical and lumbar spine merely established that as of May and June 2004, the plaintiff showed evidence of herniated discs in the cervical and lumbar regions of her spine. The mere existence of a herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sharma v Diaz, 48 AD3d 442; Mejia v De Rose, 35 AD3d 407, 408; Yakubov v CG Trans. Corp., 30 AD3d 509, 510; Cerisier v Thibiu, 29 AD3d 507, 508; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50; Diaz v Turner, 306 AD2d 241, 242). The plaintiff's affidavit was insufficient to satisfy that requirement (see Young Soo Lee v Troia, 41 AD3d 469, 470; Nannarone v Ott, 41 AD3d 441, 442; Vidor v Davila, 37 AD3d 826, 827).

Finally, the plaintiff failed to proffer any competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569, 570).

SPOLZINO, J.P.

 

Scotto v. Suh

 

Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Debra A. Kellman of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated May 1, 2007, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

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

The defendant met his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition, the plaintiff failed to raise a triable issue of fact. The reports of Dr. Arovas and Dr. Camp were unsworn, and hence, without probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747, 748). The proffered hospital records merely reflect neck strain, which does not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Washington v Cross, 48 AD3d 457). The affirmation and report of Dr. Khabie failed to proximately relate any particular findings to the subject accident (see Vishnevsky v Glassberg, 29 AD3d 680, 681; Shepley v Helmerson, 306 AD2d 267). The reports of Dr. Mendoza, Dr. Scott Jones, Dr. Nicholas Jones, and Dr. Petrucci failed to demonstrate cervical spine or left shoulder range of motion limitations roughly contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731, 733). The MRI reports of Dr. Waxman and Dr. Diamond showing a disc herniation at C6-7 and a partial left shoulder rotator cuff tear fail to establish the extent of the alleged physical limitations resulting from the injury and their durations (see Casas v Montero, 48 AD3d 728; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583, 584).

 

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

SPOLZINO, J.P., RITTER, DILLON, BALKIN and LEVENTHAL, JJ., concur., RITTER, DILLON, BALKIN and LEVENTHAL, JJ., concur.

 

Soto v. Koysor

 

Richard M. Duignan, New York, for appellants.

James M. Lane, New York, for respondents.

 

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered March 19, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.

 

Plaintiffs provided no explanation for terminating their medical treatment several months after the accident in which they claim to have sustained "serious injury" (Insurance Law § 5102[d]; see Pommells v Perez, 4 NY3d 566, 574-575 [2005]). 

 

Tinsley v. Bah

 

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.

(Stacy R. Seldin of counsel), for appellant Mamadou S. Bah.

Cheven, Keely & Hatzis, New York, N.Y. (Mayu Miyashita of

counsel), for appellant Adam Chilicki.

Kerner & Kerner, New York, N.Y. (Kenneth T. Kerner of

counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Mamadou S. Bah appeals, and the defendant Adam Chilicki separately appeals, from an order of the Supreme Court, Kings County (Saitta, J.), dated October 4, 2007, which denied their respective motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

 

The defendants, Mamadou S. Bah and Adam Chilicki, although separately moving for summary judgment, relied on the same submissions in their attempts to meet their initial prima facie burdens. Their respective motion papers did not adequately address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident. The subject accident occurred on June 4, 2005. The plaintiff alleged in his bill of particulars that he was confined to his bed and home for a period of 4½ months post-accident. The defendants' examining neurologist conducted his examination of the plaintiff approximately 1½ years after the subject accident occurred. He did not relate his medical findings to this category of serious injury for the period of time immediately following the subject accident (see Joseph v Hampton, 48 AD3d 638; Deville v Barry, 41 AD3d 763; Torres v Performance Auto. Group, Inc., 36 AD3d 894; Sayers v Hot, 23 AD3d 453). The excerpts of the plaintiff's deposition testimony relied upon by the defendants essentially established only that the plaintiff was retired at the time of the subject accident. These submissions clearly did not establish the lack of any such category of serious injury.

Since the defendants failed to satisfy their prima facie burdens, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Joseph v Hampton, 48 AD3d 638; Sayers v Hot, 23 AD3d 453; Coscia v 938 Trading Corp., 283 AD2d 538). FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

 

AMERICAN MOTORISTS INS. CO.

 

v


LOUIS P. CIMINELLI CONSTRUCTION CO., INC.,


Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 23, 2007. The order granted the motion of defendants Louis P. Ciminelli Construction Co., Inc., also known as Louis P. Ciminelli Construction Co. Inc., LPCiminelli Construction Corp., Louis P. Ciminelli Management Co., Inc., Ciminelli Holdings, Inc., Ciminelli Services Corp. and LPCiminelli Interests, Inc. for summary judgment dismissing the complaint against them.


SLIWA & LANE, BUFFALO (STANLEY J. SLIWA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HODGSON RUSS LLP, BUFFALO (JULIA M. HILLIKER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.



It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.

Memorandum: Plaintiff, as subrogee of Niagara Falls City School District (District), commenced this action seeking to recover sums it paid to the District for property damages pursuant to an insurance policy issued by plaintiff's predecessor. The District incurred the property damage when pipes in the fire sprinkler system at the District's high school froze and burst. We conclude with respect to appeal No. 1 that Supreme Court properly granted the motion of defendants Louis P. Ciminelli Construction Co., Inc., also known as Louis P. Ciminelli Construction Co. Inc., LPCiminelli Construction Corp., Louis P. Ciminelli Management Co., Inc., Ciminelli Holdings, Inc., Ciminelli Services Corp. and LPCiminelli Interests, Inc. (collectively, Ciminelli) seeking summary judgment dismissing the complaint against them. In addition, we conclude with respect to appeal No. 2 that the court properly granted the motion of defendants-respondents (collectively, Davis-Ulmer) seeking summary judgment dismissing the complaint against them. Both Ciminelli, the general contractor for the construction of the high school, and Davis-Ulmer, a subcontractor for the fire sprinkler system, established that the waiver of subrogation provision in the general contract bars the instant action against them (see generally Trump-Equitable Fifth Ave. Co. v H.R.H. Constr. Corp., 106 AD2d 242, 245, affd 66 NY2d 779; Mu Ch. of Sigma Pi Fraternity of U.S. v Northeast Constr. Servs., 273 AD2d 579, 581-582, lv denied 95 NY2d 768). We reject plaintiff's contention that the waiver of subrogation provision does not apply to postconstruction losses (see Hodgson, Russ, Andrews, Woods & Goodyear v Isolatek Intl. Corp., 300 AD2d 1051, 1052-1053). Further, we conclude that, "even if allegations of gross negligence [against Ciminelli and Davis-Ulmer] were sufficient to bar the operation of that provision, the conduct alleged does not rise to the level of gross negligence" (Atlantic Mut. Ins. Co. v Soiefer Bros. Realty Corp., 281 AD2d 441).
Entered: April 25, 2008

General Security Insurance Company v Nir


Nicoletti Gonson Spinner & Owen LLP, New York (Edward L.
Owen, III of counsel), for appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Kisha V. Augustin of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2007, which denied the cross motion of defendants/third-party plaintiffs Buckmiller and Petzel for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, with costs.

A fire in 2000 caused extensive damage to the insured-lessee's restaurant. It was alleged that the sprinkler system installed by defendant Buckmiller in 1990 was defective and/or not properly inspected by defendant Petzvel, pursuant to a 1999 inspection agreement. Plaintiff insurer was subrogated to its insured's rights after it made payment on the insured's claim. Plaintiff's negligence action was timely commenced against defendants in February 2003. While the relationship between the parties had its genesis in contract, the nature of the contracted-for services at issue had a significant impact on the public interest, giving rise to a duty of reasonable care independent of contractual obligations that would be more time-bound to a date of breach (see Sommer v Federal Signal Corp., 79 NY2d 540, 552-553 [1992]; Trustees of Columbia Univ. in City of N.Y. v Gwathmey Siegel & Assoc. Architects, 192 AD2d 151 [1993]). Deposition testimony from the principal of both defendants, combined with, inter alia, the fire sprinkler inspection observations of plaintiff's expert, raise issues of fact whether the sprinkler system was negligently installed and/or maintained by defendants.

Defendants' spoliation argument was properly rejected. They had an opportunity to inspect the fire-damaged premises on several occasions, and did so. Plaintiff promptly notified defendants formally of its intent to seek indemnification based on the allegedly faulty sprinkler system. Plaintiff's letter also advised that the sprinkler system would be disassembled, and expressly requested that defendants respond so a mutual date for disassembly and inspection could be arranged. Defendants' principal acknowledged receiving that letter, yet there is no assertion or evidence in the record that they ever responded. On this record, it can not be concluded that premature disposal of the sprinkler gave plaintiff an unfair advantage over defendants (see e.g. Ifraimov v Pheonix Indus. Gas, 4 AD3d 332 [2004]). The trial court can instruct the jury, if appropriate, as to adverse inferences, as well as the need to weigh plaintiff's explanation of how and why the sprinkler system is no longer available (Tawedros v St. Vincent's Hosp. of N.Y., 281 AD2d 184 [2001]).

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

ENTERED: APRIL 22, 2008

Falkowski v Krasdale Foods, Inc.,


Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola,
N.Y. (James V. Derenze of counsel), for second third-party
defendant-appellant.
Koenig & Samberg, Mineola, N.Y. (Arnold Koenig of counsel),
for third-party defendants-appellants.
John P. Humphreys, Melville, N.Y. (Scott W. Driver of
counsel), for defendant third-party
plaintiff/second third-party
plaintiff-respondent-appellant.
Samuel J. Lurie, New York, N.Y. (Dennis A. Breen of counsel),
for plaintiff-respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, (1) Commercial Personnel Services, Inc., appeals from so much of an order of the Supreme Court, Queens County (Price, J.), entered December 11, 2006, as granted that branch of the cross motion of Krasdale Foods, Inc., which was for summary judgment against it on its cause of action in the second third-party complaint for contractual indemnification, (2) Commercial Transportation Group and Commercial Logistics, Inc., separately appeal from so much of the same order as granted those branches of the cross motion of Krasdale Foods, Inc., which were for summary judgment against them (a) on its cause of action in the third-party complaint for contractual indemnification and (b) on its cause of action alleging breach of contract for failure to procure insurance, and (3) Krasdale Foods, Inc., cross-appeals, as limited by its brief, from so much of the same order as (a) granted that branch of the plaintiff's motion which was for leave to serve and file an amended complaint and amended bill of particulars to add a cause of action alleging negligent entrustment, and (b) denied that branch of its cross motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to Krasdale Foods, Inc., by Commercial Transportation Group, Commercial Logistics, Inc., and Commercial Personnel Services, Inc., appearing separately and filing separate briefs, and one bill of costs payable by Krasdale Foods, Inc., to the plaintiff.

The Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to serve and file an amended complaint and amended bill of particulars to add a cause of action alleging negligent entrustment (see Alatorre v Hee Ju Chun, 44 AD3d 596; Maloney Carpentry, Inc. v Budnik, 37 AD3d 558). Since a plaintiff may oppose a motion for summary judgment by relying on an unpleaded cause of action (see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281; Perez v Cassone Leasing, Inc., 40 AD3d 946; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523), prejudice cannot be inferred simply because the plaintiff sought leave to amend the complaint shortly before Krasdale Foods, Inc. (hereinafter Krasdale), cross-moved for summary judgment.

The Supreme Court properly denied that branch of Krasdale's cross motion which was for summary judgment dismissing the complaint, as Krasdale failed to establish its prima facie entitlement to judgment as a matter of law. There are issues of fact as to whether it had actual or constructive notice of the alleged defective condition causing the accident (see Gatto v Turano, 6 AD3d 390; Abayev v Jaypson Jewelry Mfg. Corp., 2 AD3d 548), and whether it knowingly entrusted a dangerous instrument to a person who did not understand all the dangers posed (see Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 236; Splawnik v Di Caprio, 146 AD2d 333; Martinez v Hitachi Constr. Mach. Co., Ltd., 15 Misc 3d 244, 254).

Krasdale established its prima facie entitlement to judgment as a matter of law on its causes of action in the third-party complaint and the second third-party complaint for contractual indemnification. The exclusivity provisions of Workers Compensation Law § 11 do not vitiate a provision in a written contract by which an employer expressly agrees to provide indemnification (see Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427; Tonking v Port Auth. of N.Y. and N.J., 3 NY3d 486; Castilla v K.A.B. Realty, Inc., 37 AD3d 510; Spiegler v Gerken Bldg. Corp., 35 AD3d 715; Martelle v City of New York, 31 AD3d 400). The contract need not be signed by the employer to be enforceable (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369; Mentesana v Bernard Janowitz Const. Corp., 36 AD3d 769). In opposition, the third-party defendants, Commercial Transportation Group and Commercial Logistics, Inc., and the second third-party defendant, Commercial Personnel Services, Inc., failed to raise a triable issue of fact.

Finally, the Supreme Court properly granted that branch of Krasdale's cross motion which was for summary judgment on the cause of action alleging breach of contract against the third-party defendants for failure to procure insurance naming Krasdale as an additional insured (see Kinney v Lisk Co., 76 NY2d 215; Simel v City of New York, 274 AD2d 466; American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420).
RIVERA, J.P., SKELOS, SANTUCCI and BELEN, JJ., concur.

Wilson  v Galicia Contracting & Restoration Corp.


Kenneth Mauro, for appellant.
Brian J. Isaac, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

On June 18, 1999,at about 7:30 p.m., 16-year-old plaintiff Lamont Wilson allegedly was walking under scaffolding assembled by defendant Safway Steel Products when he saw the scaffolding shake and looked up, and a piece of material fell into his left eye. Plaintiff told hospital personnel that he thought that he had been struck by broken glass. Doctors surgically removed a small piece of metal that had imbedded in his eye and permanently damaged his retina.

On April 6, 2000, plaintiff filed suit against Safway and six other defendants, asserting various theories of liability. Over the ensuing months, Safway and certain other defendants failed to comply with plaintiff's formal and informal discovery demands, and with the terms of a Preliminary Conference Order dated June 25, 2001. Ultimately, on plaintiff's application, the court issued a self-executing conditional order directing defendants to comply by July 1, 2002 or their answers would be stricken.

Having failed to comply, Safway's answer was stricken as of July 1, 2002. This left unrebutted plaintiff's assertion that the cause of plaintiff's injury was "a dangerous, defective and unsafe condition" existing on defendant's premises. In early August 2002, at the request of a co-defendant, plaintiff produced the object that had been removed from his eye; that defendant's expert opined that the object appeared to be a lead air-gun pellet that was "fired into an eye by the power of an airgun." Plaintiff thereafter discontinued his claims against the other defendants with prejudice, and by order dated June 18, 2003, the court granted his motion for an inquest against Safway, denying Safway's motion to dismiss.

Over the next two years, Safway unsuccessfully moved three times to vacate the order striking its answer and the order granting the inquest. First, Safway attempted to show a "justifiable excuse" for its conduct. The Appellate Division affirmed denial of that motion, concluding that Safway failed to offer "any acceptable reason for its two-year long pattern of failure to respond to discovery demands, court orders, or the conditional order." Next, Safway alleged that the underlying claim was fraudulent. The trial court determined that its decision to strike Safway's answer and allow plaintiff to proceed to an inquest was "wholly unrelated and in no manner the result of" alleged fraud but resulted solely from Safway's "own actions or inactions." Third, Safway claimed that the self-executing order was void ab initio due to a stay in another matter; the court denied that motion as well, finding the stay inapplicable. After the inquest and entry of judgment, the Appellate Division reduced the award but otherwise affirmed. We now affirm.

In our Court, Safway contends that CPLR 3215 (f) renders the judgment a nullity. Safway — who was represented throughout by counsel, and offered no valid reason for ignoring the discovery demands and court orders — failed to raise this argument in its prior motions [FN1]. As we have previously made clear, the requirement of preservation is not simply a meaningless technical barrier to review (see New York City Tr. Auth. v Bingham, 99 NY2d 355, 359 [2003]). Here, for example, had defendant earlier raised CPLR 3215 (f), plaintiff might well have filed the documents referenced in that section; the affidavit or verified complaint specified in CPLR 3215 (f) "need only allege enough facts to enable a court to determine that a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). Today, nearly a decade after the incident, and years after dismissal of all co-defendants with prejudice, the potential harm to plaintiff from reversing the consequence of Safway's counseled course of action is manifest.

As the conditional order was self-executing and appellant's "failure to produce [requested] items on or before the date certain" rendered it "absolute" (see Zouev v City of New York, 32 AD3d 850, 850 [2d Dept 2006]; Lopez v City of New York, 2 AD3d 693, 693 [2d Dept 2003]), the courts below correctly held that defendant was precluded from introducing any evidence at the inquest "tending to defeat the plaintiff's cause of action" (Rokina Optical v Camera King, Inc., 63 NY2d 728, 730 [1984]; see Weinstein, Korn & Miller ¶ 3126.03 [a conditional order "will preclude proof as to matters not furnished unless the delinquent party provides the particulars within the time frame specified in the order"]). As a result, Safway was deemed to admit "all traversable allegations in the complaint, including the basic allegation of liability" (Curiale v Ardra Insurance Co., Ltd., 88 NY2d 268, 279 [1996]).

Addressing the dissent, we agree that courts must protect the integrity of the judicial process and ensure that plaintiffs do not secure money judgments based on fraudulent claims. We do, however, assure those objectives by insisting on the parties' compliance with statutes and orders throughout the litigation process, particularly when both sides are represented by counsel engaged to make, and respond to, arguments for their clients. The objectives of honesty and integrity are not furthered when the Court goes outside applicable law to itself raise arguments not preserved in the trial court. Indeed, the dissent's major point — noncompliance with CPLR 5015 (a)(3) — has not even been presented to us.

For this Court now to do the "lawyering" is problematic for additional reasons. Here, for example, there is nothing nefarious in the 16-year-old's statement to hospital personnel immediately after the incident that he thought a piece of broken glass had fallen into his eye when he looked up. He did not actually know what had fallen into his eye; there is no "new theory" (dissent, p 3). Nor does the opinion of another defendant's expert establish that a metal pellet was fired from an air gun (dissent, p 2); plaintiff's treating physician at the inquest acknowledged that the injury also could have been caused by a small metal object dropping from above. Finally, the dissent's solution — again not sought by Safway before us — overlooks the unfairness to plaintiff of remittal for a hearing at this point, long after the accident and dismissal of all other defendants. Wilson v Galicia Contracting & Restoration Corp. No. 65
PIGOTT, J.(dissenting) :

I respectfully dissent. In my view, Supreme Court abused its discretion by failing to consider the compelling evidence that plaintiff's negligence cause of action against Safway was fraudulent. Although Safway's answer was properly stricken due to its failure to comply with discovery demands, shortly thereafter, it presented proof that plaintiff's eye injury was caused by an air gun pellet, and not from a falling object emanating from its scaffold, as was alleged in the complaint. Such evidence should have been considered because courts must protect the integrity of the judicial process and ensure that undeserving plaintiffs are not awarded monetary judgments predicated upon fraudulent claims.

According to plaintiff's attorney-verified complaint (i.e., not sworn to by plaintiff or his guardian), plaintiff was injured "as a result of a dangerous, defective and/or unsafe condition existing upon [the] . . . construction site when a piece of material was caused to fall from the scaffold or an area above" striking him in the eye. Safway's answer was stricken after it failed to comply with plaintiff's discovery demands and a conditional preclusion order. A short time later, plaintiff produced the "object" that hit him in the eye. The object was examined by Joseph F. Dyro, a certified clinical engineer with a Ph.D. in Biomedical Electronics Engineering from the University of Pennsylvania, who opined that it was "equivalent in appearance, weight and dimensions to a 0.177 caliber pointed lead airgun pellet." Based upon the nature of plaintiff's injury, the expert concluded that the object was fired directly into plaintiff's eye and did not fall from the scaffold.

In response to plaintiff's motion for an inquest on damages, Safway cross-moved to dismiss the complaint, arguing that the object that caused plaintiff's injury did not come from its scaffold. Notably, during the pendency of this motion, after the air gun pellet was produced and examined, plaintiff discontinued the action against all non-defaulting defendants. Supreme Court nevertheless granted plaintiff's motion for an inquest against Safway and denied Safway's cross motion to dismiss the complaint. The court concluded that Safway, through its default in responding to plaintiff's discovery demands, admitted the traversable allegations in the complaint regarding liability and causation and the expert opinion had "no bearing on the issue of plaintiff's right to an immediate trial or inquest on damages."[FN2]

Safway subsequently moved pursuant to CPLR 5015(a)(3) to vacate the order granting plaintiff's motion for an inquest on the ground of fraud. Again, Safway argued that the evidence revealed that an air gun pellet, not an object falling from Safway's scaffold, caused plaintiff's injuries. Supreme Court denied Safway's motion, concluding that its prior order setting the matter down for an inquest "was a proper exercise of the court's discretion, unaffected by, wholly unrelated to, and in no manner the result of the fraud alleged by Safway to have been perpetrated by [plaintiff] concerning the issue of the manner in which . . . plaintiff was actually injured." Instead, the court noted that its order was premised on Safway's disclosure noncompliance. The court concluded that it lacked the authority to vacate the order pursuant to CPLR 5015(a)(3).

At the inquest, plaintiff recounted that, while standing under the scaffold with two friends, he saw the scaffold shake, looked up and an object fell into his eye. On cross-examination, he denied being struck with a air gun pellet. However, according to the medical records admitted at the inquest, plaintiff initially told hospital personnel that a piece of a glass bottle ricocheted off a wall hitting him in the left eye. Nevertheless, plaintiff testified to his new theory that a piece of metal fell from the scaffold. The court awarded plaintiff judgment in excess of $1 million for past and future
pain and suffering.

The Appellate Division modified the judgment but only by reducing the amount of the award to $700,000. As for Safway's fraud argument, the court held that Supreme Court properly found that Safway failed to demonstrate that plaintiff fraudulently procured the order directing an inquest. Specifically, it noted that "Safway was attempting to present a defense where it otherwise would not be entitled to, as its answer was stricken. There was no evidence that the plaintiffs' complaint was fraudulent or that the plaintiffs attempted to mislead the court in an effort to procure the judgment" (36 AD3d 695, 697).

As the majority notes, Safway's principal argument to this Court — that plaintiff's failure to comply with CPLR 3215(f) renders the default judgment a nullity — is unpreserved. Although not argued here, Safway asserted in the courts below that its default should have been vacated pursuant to CPLR 5015(a)(3) on the ground of fraud. Regardless of whether the issue was argued here, this Court should reach the issue because courts have a fundamental duty to ensure that judgments are not procured by fraud.

It is well settled that courts possess the inherent authority to ensure the integrity of the judicial process and guard against the procurement of judgments based on fraud (see Lyons v Goldstein, 290 NY 19, 25 [1943]; Matter of Holden, 271 NY 212, 218 [1936]; Furman v Furman, 153 NY 309, 314 [1897]). Pursuant to CPLR 5015(a)(3), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just . . . upon the ground of . . . fraud, misrepresentation, or other misconduct of an adverse party."

Here, in my view, the evidence of fraud in this case is compelling and should not be ignored by our courts merely because Safway failed to respond to discovery requests. The majority correctly notes that one of the ways the objective of protecting against the procurement of judgments based on fraudulent claims is accomplished is by insisting on compliance with statutes and orders throughout the litigation process. However, the law also provides an additional safeguard against fraudulent judgments, i.e., a CPLR 5015(a)(3) motion, even where an answer is stricken due to a defendant's failure to comply with a discovery order. Here, Safway made such a motion at Supreme Court before the inquest, and thus, the issue was properly preserved below.

First, Supreme Court erred in concluding that it lacked the authority to vacate its order directing an inquest under CPLR 5015(a)(3). As we have previously recognized, "the fraud forming the basis for a CPLR 5015 motion may be either extrinsic or intrinsic" (Oppenheimer v Westcott, 47 NY2d 595, 603 [1979], citing Third Preliminary Report of Advisory Comm on Practice & Procedure, p 204 [1959]; see Weinstein-Korn-Miller, NY Civ Prac, P 5015.09).

Next, in its CPLR 5015(a)(3) motion, Safway presented
expert evidence that clearly supports its claim that plaintiff's eye injury was caused by a lead air gun pellet and not by a glass bottle or an object falling from Safway's scaffold. However, Supreme Court, in deciding the motion, refused to consider the strong evidence of fraud, concluding that its previous order directing an inquest against Safway stemmed from Safway's discovery noncompliance, and thus, that order itself was not procured by plaintiff's alleged fraud. But the claim is not that plaintiff committed fraud in obtaining the order directing an inquest, but rather that he procured a $700,000 judgment from the court based on the fraudulent claim set forth in his complaint that he was injured from a "piece of material" falling from Safway's scaffold. Based on this contrary evidence, to date unaddressed by plaintiff, a serious question has been raised that plaintiff has perpetrated a fraud on the court by procuring a judgment premised upon a fraudulent legal claim against Safway. Thus, in my view, Supreme Court erred in holding that it could not consider the evidence of fraud on Safway's CPLR 5015(a)(3) motion.  Accordingly, I would reverse the order of the Appellate Division and remit the matter to Supreme Court for reconsideration of Safway's CPLR 5015(a)(3) motion, and if deemed necessary, conduct a hearing whereby Safway would be permitted to attempt to prove, by the clear and convincing evidence standard, that plaintiff procured the judgment by fraud.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Jones concur. Judge Pigott dissents and votes to reverse in an opinion in which Judge Smith concurs.
Decided April 29, 2008

Footnotes



Footnote 1: Defendant's alternative argument in our Court — a purported violation of the Disciplinary Rules by plaintiff's counsel — is similarly unpreserved.

Footnote 2: Although Safway did not object, plaintiff never submitted a verified complaint or an affidavit of merit in his motion to proceed to a damages inquest or at the inquest itself, thus failing to offer "proof of the facts constituting the claim," as required by CPLR 3215(f).

 

Sanatass v Consolidated Investing Company, Inc.


Susan Nudelman, for appellants.
Michael S. Leyden, for respondents.
New York State Trial Lawyers Association, amicus
curiae.

GRAFFEO, J.:

On this appeal, we conclude that a property owner is liable for a violation of Labor Law § 240 (1) that proximately caused injury to a worker even though a tenant of the building contracted for the work without the owner's knowledge. We therefore reverse the order of the Appellate Division and grant plaintiff partial summary judgment.

Defendant Consolidated Investing Company owned a commercial building located at 423 West 55th Street in Manhattan. C2 Media, LLC occupied the 11th floor of the building under a lease assignment from the original tenant, Chroma Copy International [FN1]. C2 Media agreed to abide by the terms of Chroma's lease, including a provision that the "[t]enant shall make no changes in or to the demised premises of any nature without Owner's prior written consent." In addition, a rider to the lease stated that "[a]ll renovations, decorations, additions, installations, improvements and or alterations of any kind or nature in the Demised Premises . . . shall require the prior written consent of Landlord." The lease also contained an indemnification clause in favor of Consolidated and obligated the tenant to obtain comprehensive liability insurance coverage naming Consolidated as an additional insured.

In January 2000, plaintiff Christopher Sanatass, a mechanic employed by JM Haley Corporation, was directed to install a commercial air conditioning unit for C2 Media, which had hired JM Haley without notifying Consolidated. Upon arriving at the work site, plaintiff installed air conditioning ducts and drilled holes into the 10-foot-high ceiling to affix rods designed to hold the 1,500 to 2,500 pound commercial unit. When plaintiff and a coworker hoisted the air conditioning unit about seven feet off the ground, one of the manual material lifts failed, causing the unit to drop and knock plaintiff to the floor. Plaintiff sustained injuries when the unit nearly crushed him.

Plaintiff and his wife, suing derivatively, commenced this action against, among others, Consolidated and Chroma, alleging violations of Labor Law § 240 (1) and § 241 (6). Consolidated cross-claimed against Chroma and brought a third-party action against Chroma and C2 Media seeking contribution and indemnification. Consolidated and plaintiff each moved for summary judgment. In support of his motion, plaintiff offered the affidavit of a licenced professional engineer, who concluded that the two portable lifts used to hoist the air conditioning unit were inadequate and failed because they had a lift capacity of only 1,000 pounds.

Supreme Court granted Consolidated's motion and dismissed the complaint. The Appellate Division, with two Justices dissenting, affirmed, reasoning that under Abbatiello v Lancaster Studio Assoc. (3 NY3d 46 [2004]) Consolidated was not liable "because the air conditioning installation was performed without its consent and in violation of the lease" (38 AD3d 332 [2007])[FN2]. Plaintiff appeals as of right to this Court pursuant to CPLR 5601 (a). 

At the outset, Consolidated does not dispute that plaintiff was not afforded proper safety devices or that his injuries were proximately caused by the inadequate lifts. It nevertheless contends that our Court can resolve this case on a threshold issue by concluding that plaintiff's work did not constitute an alteration and, therefore, plaintiff was not engaged in an activity protected by Labor Law § 240 (1). We address this question first.

It is now settled that the term "altering" as used in section 240 (1) "requires making a significant physical change to the configuration or composition of the building or structure" (Joblon v Solow, 91 NY2d 457, 465 [1998] [emphasis in original]). Conversely, an alteration "does not encompass simple, routine activities such as maintenance and decorative modifications" (Panek v County of Albany, 99 NY2d 452, 458 [2003]).

To illustrate, in Joblon we determined that the plaintiff electrician's installation of an electric wall clock, which required the chiseling a hole in a concrete wall to extend electrical wiring from an adjoining room, was "significant enough" to come within the statute (91 NY2d at 465). Similarly, in Panek, the removal of a pair of 200-pound air handlers, requiring preparatory work consisting of the dismantling of a number of components of the cooling system and involving the use of a mechanical lift, constituted a significant change as a matter of law (99 NY2d at 458).

Here, plaintiff drilled holes and affixed metal rods into the ceiling and installed air conditioning ducts as preparatory work. He then attempted to install a 1,500 to 2,500 pound air conditioning unit using two portable manual material lifts, at which point he sustained injuries as a result of an elevation-related hazard — a falling object. This work comfortably satisfies the alteration standard set by Joblon and Panek as a matter of law. We now turn to the issue that divided the Appellate Division.

Plaintiff argues that Consolidated is an "owner" within the meaning of Labor Law § 240 (1) and that Consolidated is liable for a statutory violation despite its lack of notice or control over the work. Consolidated counters that the courts below correctly applied Abbatiello in holding that an out-of-possession owner who has no knowledge of the work being done on its premises cannot be held liable under section 240 (1). Relying on the lease provision obligating the tenant to obtain the owner's permission before hiring a contractor to perform any alterations, Consolidated asserts that the tenant's breach severed any nexus between itself and plaintiff.

Labor Law § 240 (1), commonly referred to as the "scaffold law," provides, in relevant part:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
In 1969, the Legislature expanded the scope of responsible parties from persons "employing or directing another to perform labor" to "[a]ll contractors and owners and their agents" (L 1969, ch 1108). The legislative history reveals that this amendment was intended to place "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" rather than on the workers themselves (Mem of Senator Calandra and Assemblyman Amann, 1969 NY Legis Ann, at 407). In broadening the protection afforded by the statute, the Legislature reemphasized that section 240 was enacted for the purpose of protecting workers (see id.).

We do not write on a blank slate when interpreting Labor Law § 240 (1). Indeed, a number of well-settled principles provide us with guidance. We have repeatedly stated that Labor Law § 240 (1) "imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]; see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]). To be sure, we have cautioned that an owner is not "an insurer after having furnished a safe workplace" and that an accident, in and of itself, does not establish a statutory violation (Blake, 1 NY3d at 286, 289). But at the same time, it is clear that the statutory duty imposed by this strict liability provision is "nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991] [emphasis in original]). Additionally, section 240 (1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Panek, 99 NY2d at 457 [internal quotation marks and citation omitted]).

In a trio of cases, we examined the liability of out-of-possession owners under the Labor Law. First, in Celestine v City of New York (59 NY2d 938 [1983], affg for reasons stated below 86 AD2d 592 [2d Dept 1982]), a worker who sustained injuries while building a subway line commenced a Labor Law action against the Long Island Rail Road Company (LIRR), the property owner. LIRR moved for summary judgment dismissing the claim, submitting that it should not be deemed an "owner" for purposes of Labor Law § 241 (6) because the property was subject to an easement in favor of the City of New York and the New York City Transit Authority [FN3]. In declining to dismiss the section 241 (6) claim, the court rejected LIRR's argument, reasoning that the statute imposes a nondelegable duty on owners to furnish adequate protection to workers "regardless of the absence of control, supervision or direction of the work" (86 AD2d at 593).

Next, in Gordon, an employee of Ebenezer Railcar Services brought a Labor Law § 240 (1) action against Eastern Railway Supply, the property owner, seeking damages for personal injuries occasioned when he fell from a ladder. On a motion for summary judgment, Eastern contended that it could not be liable as an owner under section 240 (1) because it had leased the property to Ebenezer, its wholly owned subsidiary, and "neither contracted to have the work performed nor was the work performed for its benefit" (82 NY2d at 559). Relying on Celestine, we disagreed and concluded that Eastern was responsible because liability "rests upon the fact of ownership and whether Eastern had contracted for the work or benefitted from it are legally irrelevant" (id. at 560).

Finally, in Coleman v City of New York (91 NY2d 821 [1997]), an employee of the New York City Transit Authority suffered elevation-related injuries while performing repair work and pursued a Labor Law § 240 (1) claim against the City of New York as the property owner. The City claimed that it should not be strictly liable because it had leased the property to the Transit Authority and "lacked any ability" to protect Authority workers based on the statutory scheme creating the Authority and governing their relationship (id. at 823). We rejected the City's position, finding that Celestine and Gordon articulated a "bright line rule" that section 240 (1) applied to all owners regardless of whether the property was leased out and controlled by another entity or whether the owner had the means to protect the worker (id. at 822). In so ruling, we also disavowed Robinson v City of New York (211 AD2d 600 [1st Dept 1995]), which had restricted the City's liability as an owner under the Labor Law because it had leased property to the Transit Authority and "had no actual or potential control over the worksite and retained a right of re-entry for non-transit purposes only." We determined that it was for the Legislature, not this Court, to carve out exceptions to the broad reach of owner liability under section 240 (1).

Here, like the defendants in Celestine, Gordon and Coleman, Consolidated seeks to avoid liability under Labor Law § 240 (1) by contending that it is not an "owner" for the purposes underlying the statute. Relying on its lack of knowledge of plaintiff's work, undertaken at the behest of the tenant, Consolidated asks us to import a notice requirement into the Labor Law or, conversely, create a lack-of-notice exception to owner liability. But our precedents make clear that so long as a violation of the statute proximately results in injury, the owner's lack of notice or control over the work is not conclusive — this is precisely what is meant by absolute or strict liability in this context (see Blake, 1 NY3d at 289). We have made perfectly plain that even the lack of "any ability" on the owner's part to ensure compliance with the statute is legally irrelevant (see Coleman, 91 NY2d at 823). Hence, Consolidated may not escape strict liability as an owner based on its lack of notice or control over the work ordered by its tenant.

Consolidated's reliance on our recent decision in Abbatiello is misplaced. In that case, plaintiff, a cable repair technician, was dispatched by his employer to an apartment building owned by Lancaster Studio Associates in response to a complaint by one of the building's tenants. In the course of accessing a junction box on the exterior of the building, plaintiff's ladder bent, causing him to fall and sustain injuries. As a result, he commenced an action against Lancaster alleging a violation of Labor Law § 240 (1). Although we observed that Lancaster was unaware of and did not consent to the plaintiff's presence on the property, these facts alone were not determinative of our affirmance of the dismissal of the complaint.

Rather, in Abbatiello we carefully distinguished Celestine and its progeny, noting that in those cases a nexus existed between the out-of-possession owner and the plaintiff, be it by lease, easement or some other property interest. In Abbatiello, however, the injured cable technician was on the property solely "by reason of provisions of the Public Service Law" (3 NY3d at 51). Our analysis emphasized that section 228 of the Public Service Law established mandatory access for cable repair workers and that, but for this statute, the plaintiff "would be a trespasser upon Lancaster's property" (id. at 52). Public Service Law § 219 also rendered Lancaster "powerless to determine which cable company is entitled to operate, repair or maintain the cable facilities on its property, since such decision lies with the municipality — the franchisor" (id.). We concluded that, absent an adequate nexus between the worker and the owner, the cable technician was not entitled to the extraordinary protections of the Labor Law since he was not an "employee" for purposes of section 240 (1); as such, Lancaster could not be liable for his injuries. Contrary to Consolidated's argument in the present appeal, Abbatiello did not announce a new notice requirement for section 240 (1) cases.

Consolidated posits that, as in Abbatiello, it has an insufficient nexus with plaintiff to support absolute liability. We disagree. Consolidated leased the premises to a tenant who, in turn, hired plaintiff's firm to install a commercial air conditioning unit. True, Consolidated inserted a provision in the lease agreement requiring its tenant to obtain written permission before performing any alterations to the property. But the tenant's breach of this lease clause — while it may have some bearing on Consolidated's indemnification claim — did not sever the nexus [FN4]. Plaintiff was specifically employed by the tenant to perform work in Consolidated's building and, as between the owner and the worker, section 240 (1) clearly places the burden on the owner should a violation of the statute proximately cause injury. Unlike the cable technician in Abbatiello, the plaintiff in this case was an "employee" for purposes of section 240 (1) and cannot conceivably be viewed as a "trespasser."

At bottom, Consolidated asks us to hold that an owner may insulate itself from liability by contracting out of the Labor Law. We decline its invitation to engraft this new exception onto the statute. To allow owners to do so by the simple expedient of a lease provision, as suggested by the dissent, would eviscerate the strict liability protection afforded by the Labor Law. As we have repeatedly stated, section 240 (1) exists solely for the benefit of workers and operates to place the ultimate responsibility for safety violations on owners and contractors, not the workers. Any modification to this strict liability statute must be made by the Legislature, not this Court.

Accordingly, the order of the Appellate Division,
insofar as appealed from, should be reversed, with costs, defendants-respondents' motion for summary judgment as to the Labor Law § 240 (1) cause of action denied and plaintiffs' motion for partial summary judgment as to liability on such cause of action granted.
Christopher Sanatass v Consolidated Investing Company, Inc., et al.
No. 60

SMITH, J.(dissenting) :

I dissent because today's decision unwisely and unnecessarily increases the already heavy burden that Labor Law § 240 (1) places on New York property owners.

The statute says that, with exceptions not relevant here, "[a]ll contractors and owners . . . shall furnish or erect, or cause to be furnished or erected" safety devices "which shall be so constructed, placed and operated as to give proper protection" to workers. The duty of contractors and owners to provide "proper protection" is nondelegable (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Indeed, an owner cannot escape the duty imposed by the statute even by ridding itself of possession of the property; we have held that landlords of leased property are liable as owners under section 240 (1) (Coleman v City of New York, 91 NY2d 821, 823 [1997]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560 [1993]).

We have never addressed, however, the situation of a landlord that did not try to delegate responsibility for worker safety to its tenant, but retained in the lease the power to provide protection for workers — only to have the tenant ignore the lease provision. Here, the lease specifically prohibits the tenant from hiring a contractor to make any alterations in the premises without the landlord's prior written consent. A representative of the landlord testified that if a request for consent had been made "we would want to know who the contractor was and we would want the contractor hopefully to be someone that was known and approved by the owner." Whether such an inquiry would have prevented what happened in this case — the hiring of a contractor with unsafe equipment — will never be known, because the tenant violated the lease and never gave the landlord a chance to make the inquiry.

I do not see how the statutory goal of preventing workplace accidents is advanced by holding a landlord liable in a situation like this. What could anyone expect the landlord to do to prevent the accident, other than what it did? "The point of Labor Law § 240 (1) is to compel . . . owners to comply with the law, not to penalize them when they have done so" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]). The result the majority reaches effectively treats this landlord "as an insurer" — contrary to our view of the purpose of the statute as expressed in Blake (id.).

This result can be justified only by a literal, mechanical reading of the statute, to say that any "owner" is liable whenever a worker is not given proper protection, and is injured. We rejected such literalism in Abbatiello v Lancaster Studio Assoc. (3 NY3d 46 [2004]), where a cable television repairman was held to have no claim against a building owner who did not know the repairman was there, and could have done nothing about it if it had. I think we should follow the approach of Abbatiello here, where the tenant's breach of the lease prevented the landlord from learning of the worker's presence, rather than expand our already draconian rules of Labor Law § 240 (1) liability.
* * * * * * * * * * * * * * * * *
Order, insofar as appealed from, reversed, with costs, defendants-respondents' motion for summary judgment as to the Labor Law § 240(1) cause of action denied and plaintiffs' motion for partial summary judgment as to liability on such cause of
action granted. Opinion by Judge Graffeo. Chief Judge Kaye and Judges Ciparick, Pigott and Jones concur. Judge Smith dissents in an opinion in which Judge Read concurs.
Decided April 24, 2008

Footnotes



Footnote 1: C2 Media was the successor-in-interest by merger to Chroma.

Footnote 2: The court also determined that the Labor Law § 241 (6) claim was properly dismissed because the Industrial Code provision relied on by plaintiff was not sufficiently specific to support a violation of the statute. Plaintiff does not raise the section 241 (6) cause of action on this appeal.

Footnote 3: Labor Law § 241 (6), like section 240 (1), applies to "[a]ll contractors and owners and their agents."

Footnote 4: We take no position on the merits of Consolidated's third-party claims against C2 Media and Chroma.

 

 

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