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7/29/04            Hausman v Hoffman
Appellate Division, Third Department
Permanent Pain Without Total More Does Not Qualify for Serious Injury

While plaintiff, in opposition to the motion, submitted medical evidence that he sustained a vertebral sprain/strain resulting in pain that is permanent in nature, nowhere has plaintiff demonstrated that the claimed loss of use of his cervical and lumbar spine is "total," which is fatal to his claim

 

7/22/04            Aguilar v. Hicks

Appellate Division, First Department
Doctor’s Finding of “Permanent Partial Functional Impairment” of  Spine Not Enough to Qualify  a “Serious Injury”
Doctor’s reliance on MRI’s to conclude that plaintiff suffered a “permanent partial functional impairment” without specifying degree of limitations, insufficient to qualify plaintiff’s problems as “serious injury” under No Fault law.  In addition, photo demonstrates that scar above the plaintiff’s eye does not constitute a “significant disfigurement”.  Editor’s note -  this is another case following the 2002 Court of Appeal’s holding in Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, which suggested that a physician must rely on objective criteria to support a claim of “significant limitation” and other categories of serious injury


7/22/04            INSURANCE COMPANY OF NORTH AMERICA V. EMCOR
Appellate Division, First Department

Although Long -Arm Jurisdiction can be Predicated on Agency, Mere Existence of Parent-Subsidiary Relationship is Not Sufficient

A California corporation had no contacts in New York and although the insurance policies, pursuant to which plaintiffs sought declarations that they were not obligated to defend and indemnify the California corporation in an action arising in California, were negotiated and entered into in New York, the negotiations were conducted by the California corporation’s parent corporation and its insurance brokerage representative. The existence of an agency upon which a finding of jurisdiction may be basded cannot be inferred from the mere existence of the parent-subsidiary relationship.  Further discovery on the jurisdictional issue was not warranted since plaintiffs did not make a "sufficient start" in demonstrating that the California Corporation had the requisite minimum contacts.

 

 

7/19/04            Saidai v. Security Insurance Company of Hartford
Appellate Division, Second Department
Both First Party and Bad Faith Cases Dismissed; Libel Claim Arising Out of Disclaimer Letter Also Bounced

Plaintiff’s lawsuit for first party benefits dismissed because of expiration of one year statute of limitations. No showing of any conduct on the part of fire carrier amounting to bad faith.  Disclaimer letter suggesting that burglary was fabricated does not give rise to libel claim because an insurance carrier is entitled to express an opinion without being subject to libel action.

 

7/19/04            Levit v. Allstate Insurance Company

Appellate Division, Second Department

Legal Malpractice Action Against Insurance Defense Firm and Bad Faith Case Against Auto Carrier Both Dismissed
Watch for more of these.  New York has been a state where bad faith cases were few and far between, but there is a trend developing in the opposite direction.  In this case, there was a verdict in excess of the auto policy limits.  Without great discussion, the Appellate Division dismissed both the legal malpractice action against the defense firm and the bad faith case against the insurer for failure to settle within policy limits.

 

7/19/04            In the Matter of Karadhimas v. Allstate Insurance Company

Appellate Division, Second Department

Uninsured Motorist Arbititrator Does Not Have Power to Determine Whether Claimant Insured by Uninsured Motorist – Remember the 20 Day Rule
This case is a reminder that a UM arbitrator in New York is not empowered to determine whether or not the vehicle which caused an auto accident is or is not uninsured.  Here, the arbitrator raised questions as to whether there was physical contact between hit and run vehicle and insured car, a condition precedent to allowing a UM claim to proceed.  Without physical contact, no UM arbitration can go forward in such a situation.  The issue of physical contact (and other issues of arbitrability) however, needs to be resolved by a Court  in a motion to permanently stay arbitration, which must be filed within 20 days following the arbitration demand.  If that application is not made, and the arbitration goes forward, the arbitrator is not empowered to rule on the issue.   Since he did in this case, his decision was vacated. 

 

7/22/04            State Farm Mutual v. Glinbizzi

Appellate Division, Third Department

Need Not be Physically Injured to Be Injured – “Zone of Danger” Claim Covered by Auto Liability Policy

Father killed in auto accident while son, in “zone of danger”, looked on.  Court determines that son’s injuries are separate and distinct from father’s death and injury claims and son’s claims are recoverable in lawsuit against defendant driver though driver’s liability policy.  Court does not discuss the “next question” – does son need to have a “serious injury” in order to recover in that lawsuit. [Editor’s note – he SHOULD be so required]

 

 

 

Across Borders

 

Visit the Hot Cases section of the Federation of Defense & Corporate Counsel website, www.thefederation.org recently ranked among the top five legal research websites in an article published in the January 2004 issue of Litigation News, a publication of the Litigation Section of the American Bar Association. Dan Kohane serves as the FDCC’s Website Editor.

 

 


7/13/04            VOGELBUSCH USA, INC. V. STATE FARM LLOYDS AND STATE FARM FIRE & CAS. CO.

Texas Court of Appeals

Products-Completed Operations Hazard Exclusion Applies To Damage Arising In Connection With Sale Of Product By Insured
Vogelbusch was hired by a plant owner to engineer and design a high purity ethanol dehydrator to be installed at its alcohol plant. The plant owner claimed the dehydrator did not produce beverage-grade ethanol because of the presence of a contaminant in the finished product. The plant owner filed a claim against Vogelbusch, which Vogelbusch tendered to its insurer under its CGL and umbrella policies. The insurer asserted that there was no duty to defend based on exclusions in the policies, but Vogelbusch argued that the products-completed operations hazard exclusion did not apply in cases in which the damage or injury arises in connection with the sale or distribution of a product by the insured. The court held that the products-completed operations hazard exclusion did apply, as the dehydrator was no longer on Vogelbusch’s property and all work on the dehydrator under the contract was completed. Thus, there was no coverage under the CGL or umbrella policy and the insurer had no duty to defend Vogelbusch.

Submitted by: Bruce D. Celebrezze and Erin Adrian (Sedgwick, Detert, Moran & Arnold LLP)


7/13/04            FARM BUREAU MUT. INS. CO. V. NORTH STAR MUT. INS. CO.

Minnesota Court of Appeals

Church’s Insurer Has Duty To Defend Volunteer Contractor When There Is Question Of Fact As To Capacity In Which He Is Working
Upon the death of his father, a church member decided to donate a steeple to the church in his father’s memory. A number of church members, including a general contractor, volunteered to lift the steeple onto the church roof. The contractor was operating a crane to lift the steeple and inadvertently touched some power lines, causing electrical injury to another volunteer working on the crane. He sued both the church and the volunteer contractor. The church was insured by North Star, and the policy covered church volunteers with respect to liability for activities performed on behalf of the church. North Star, however, declined coverage on the grounds that the contractor was not a volunteer working on behalf of the church, but a commercial contractor hired by the church. Because there was some question as to what capacity the contractor was working in, as a volunteer or as a commercial contractor hired by the church, the court held North Star had a duty to defend.

Submitted by: Bruce D. Celebrezze and Erin Adrian (Sedgwick, Detert, Moran & Arnold LLP) 


7/15/04            COPPEDGE-LINK V. STATE FARM

Texas Court of Appeals

Release And Discharge Of Claims “Arising From Accident” Includes Claims Relating To Alleged Misconduct Of Insurers In Negotiating Settlement Agreement
Plaintiff’s husband was killed in a car accident in which he was riding as a passenger in a friend’s vehicle. She sued both the driver with which her husband was riding as well as the driver of the other car involved, and reached a combined settlement with their insurance companies of $70,000. Plaintiff entered into a structured settlement with the insurance companies in order to get certain tax advantages on the settlement proceeds. She then filed suit alleging that the insurance companies engaged in monopolistic behavior and through economic duress forced her to accept a specific structured settlement, rather than allowing her to choose the structured settlement of her choice, and failed to disclose certain fees and expenses. The court held that plaintiff’s claims were covered by the general release plaintiff had signed, which discharged the insurer from all liability for claims arising out of the accident, and thus were barred as a matter of law.

Submitted by: Bruce D. Celebrezze and Erin Adrian (Sedgwick, Detert, Moran & Arnold LLP)

 


7/27/04            NGO V. STATE FARM MUT. AUTO. INS. CO.

Hawaii Supreme Court

Arbitrator May Decide Applicability Of Covered Loss Deductible
 An insurer appealed an uninsured motorist arbitration award on the grounds that the arbitration agreement between the parties did not include an agreement to allow the arbitrators to decide the applicability of the covered loss deductible. The arbitration agreement provided that, when the insurer and claimants disagree about the amount of UM benefits to which claimants are entitled, the arbitration panel would determine the amount of damages to which claimants are entitled to collect. The necessarily means the arbitration panel must consider the covered loss deductible. Thus, the covered loss deductible was within the scope of the arbitration agreement, and the award was proper.

Submitted by: Bruce D. Celebrezze and Erin Adrian (Sedgwick, Detert, Moran & Arnold LLP)

 

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Youssef Saidai, etc., et al., appellants,

v

Security Insurance Company of Hartford, respondent.
(Index No. 5886/99)






Mark J. Nerenberg, Little Neck, N.Y., for appellants.
Graham, Miller, Neandross, Mullin & Roonan, LLC, New York,
N.Y. (Randall K. Roonan of counsel),
for respondent.

In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated November 26, 2002, as granted the defendant's motion for summary judgment dismissing the complaint.

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

The defendant demonstrated its entitlement to summary judgment dismissing the cause of action for breach of an insurance contract by submitting evidence that the plaintiffs failed to comply with the one-year time limitation for commencing an action set forth in the insurance contract (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966). In opposition, the plaintiffs failed to raise a triable issue of fact.

The cause of action alleging bad faith also was properly dismissed because there was no evidence that any duty extraneous to the contract was violated by the defendant giving rise to an actionable tort (see New York Univ. v Continental Ins. Co., 87 NY2d 308; Rocanova v Equitable Life Assur. Socy. of U.S., 193 AD2d 569, revd on other grounds 83 NY2d 603). [*2]

The cause of action alleging libel also was properly dismissed on the ground, inter alia, that any implication by the defendant in its disclaimer letter that the alleged burglary giving rise to the insurance claim was fabricated by the plaintiffs was a non-actionable opinion (see Steinhilber v Alphonse, 68 NY2d 283).

Leonid Levit, etc., appellant,

v

Allstate Insurance Company, et al., respondents (and a third-party action). (Index No. 48624/00)



In an action to recover damages for legal malpractice and for the bad faith refusal to settle an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bonina, J.), dated December 24, 2002, which granted the motion of the defendants Allstate Insurance Company and Frank Merlino and the separate motions of the [*2]defendants Erwin B. Newman and Gregory J. Newman, individually and as copartners, d/b/a Newman & Newman, and Newman & Newman, the defendant Cedric A. Brown, the defendant Kenneth L. Brown, and the defendants Marshall D. Sweetbaum and Joel A. Sweetbaum, individually and d/b/a Sweetbaum and Sweetbaum, and Sweetbaum & Sweetbaum, for summary judgment dismissing the complaint insofar as asserted against them and denied his cross motion for summary judgment on the complaint.

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

The defendants established their prima facie entitlement to summary judgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant Allstate Insurance Company acted in bad faith in refusing to settle the underlying personal injury action (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445; Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, cert denied 410 US 931; Vecchione v Amica Mut. Ins. Co., 274 AD2d 576) and failed to raise a triable issue of fact with respect to the cause of action to recover damages for legal malpractice against the remaining defendants (see Allen v Potruch, 282 AD2d 484; Lauer v Rapp, 190 AD2d 778; Murphy v Stein, 156 AD2d 546).

[*1]In the Matter of Jani Karadhimas, appellant,

v

Allstate Insurance Company, respondent.
(Index No. 6044/03)






 

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated February 12, 2003, dismissing the petitioner's claim for uninsured motorists' benefits, the petitioner appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated May 20, 2003, which denied the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is granted to the extent that the arbitration award is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The petitioner contends that while driving, his vehicle was struck by an unidentified "hit and run" motor vehicle that fled the scene. According to the petitioner, the contact with the hit and run vehicle caused the petitioner to lose control of his car and hit a utility pole. The petitioner demanded arbitration and the respondent never sought to stay arbitration. [*2]

At the arbitration hearing, the arbitrator, over objection, questioned whether the petitioner's motor vehicle came into physical contact with an unidentified "hit and run" vehicle. The arbitrator dismissed the claim on the ground that "[t]he evidence as presented by the claimant at the Hearing was insufficient to establish any negligence on the part of the alleged 'hit and run vehicle.' Indeed I find that the evidence left great doubt as to the existence of another vehicle." The arbitrator further noted that the petitioner's statements to his treating physicians contained in his hospital records contained "two conflicting statements as to how the accident occurred," including a statement by the petitioner that "[h]e swerved in an attempt to avoid another vehicle and accidentally hit a pole."

The petitioner brought the instant proceeding to vacate the arbitration award on the ground that the arbitrator exceeded his powers in considering whether there was physical contact between the petitioner's vehicle and an unidentified vehicle. The Supreme Court denied the petition on the ground that the petitioner had shown no more than a "mere possibility" that the arbitrator exceeded his powers.
In Matter of Nationwide Ins. Co. v McDonnell (272 AD2d 547, 548) this court held that an arbitrator may not decide the question of whether there was contact with a "hit and run" vehicle on the ground that lack of contact constitutes a "contractual coverage defense" and not a "liability defense." This court further held that where the insurance carrier's application to stay arbitration is untimely, "[t]he arbitrator may not decide this issue by creating an artificial distinction between contractual issues and liability issues" (Matter of Nationwide Ins. Co. v McDonnell, supra at 548).

There is no legal significance between the failure to move to stay arbitration in a timely manner and the failure to move to stay arbitration at all. In either case, the carrier waived a determination of contact as a condition precedent to coverage.

As noted by the Supreme Court, an arbitration award may not be vacated based upon the "mere possibility" that the arbitrator exceeded his authority (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308-309). However, in the instant case, it is clear that the arbitrator did, in fact, exceed his powers when he considered the question of contact and considered evidence that there may have been no contact.

The arbitrator could determine liability and dismiss the claim based upon a determination that the claimant's negligence was the sole proximate cause of the accident (see Matter of GEICO Gen. Ins. Co. v Sherman, 307 AD2d 967). However, the arbitrator was required to base his determination upon a finding that there was in fact contact with an unidentified vehicle.

In view of the foregoing, we reverse the order, grant the petition to vacate the arbitration award to the extent of vacating the award, and remit the matter to the Supreme Court, Queens County, for further proceedings, including directing a rehearing before a different arbitrator on the question of negligence and/or comparative negligence.
 

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,

v

NATHANIEL C. GLINBIZZI JR. et al., Respondents, et al., Defendant.

 

MEMORANDUM AND ORDER

Calendar Date: May 25, 2004
Before: Mercure, J.P., Crew III, Carpinello, Lahtinen and Kane, JJ.


Rivkin Radler, New York City (Stuart M. Bodoff of
counsel), for appellant.

Gerstenzang, O'Hern, Hickey & Gerstenzang, Albany
(Peter J. Hickey of counsel), for Nathaniel C. Glinbizzi Jr.,
respondent.

Delaney & Granich, Albany (Michael P. Delaney of
counsel), for Robert E. Tortorci Jr. and another, respondents.


Kane, J.

Appeal from an order of the Supreme Court (Reilly Jr., J.), entered June 27, 2003 in Schenectady County, which, inter alia, declared that plaintiff is obligated to indemnify defendant Nathaniel C. Glinbizzi Jr. for certain psychological injury claims.

Plaintiff issued an automobile insurance policy to defendant Nathaniel C. Glinbizzi Jr. (hereinafter defendant) which was in effect when he was involved in an accident. Defendant struck and killed a pedestrian who was walking with his son. The deceased pedestrian's estate and the son brought the underlying action, wherein the son alleged a zone-of-danger cause of action to recover for psychological injuries caused by witnessing the accident and his father's resulting death. Plaintiff commenced this action seeking a declaration, among other things, that the insurance policy did not cover the son's injuries under its definition of "bodily injury." Supreme Court denied plaintiff's motion for summary judgment, holding that plaintiff is [*2]obligated to indemnify defendant for any judgment related to the zone-of-danger cause of action. Plaintiff appeals.

Courts must determine the rights and obligations of parties under an insurance contract based on the policy's specific language (see State of New York v Home Indem. Co., 66 NY2d 669, 670 [1985]; Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 6 AD3d 788, 789-790 [2004]; Stasack v Capital Dist. Physicians' Health Plan, 290 AD2d 866, 866 [2002]). Unambiguous provisions must be given their plain and ordinary meaning (see Sanabria v American Home Assur. Co., 68 NY2d 866, 868 [1986]; Demopoulous v New York Cent. Mut. Fire Ins. Co., 280 AD2d 855, 856 [2001]). If a provision is ambiguous, such as when it may reasonably be interpreted in two conflicting manners, it must be resolved in favor of the insured and against the insurer who drafted the contract (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326 [1996]; Lavanant v General Acc. Ins. Co. of Am., 79 NY2d 623, 629 [1992]; State of New York v Home Indem. Co., supra at 671). "[T]he test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy" (Matter of Mostow v State Farm Ins. Cos., supra at 326-327; see Butler v New York Cent. Mut. Fire Ins. Co., 274 AD2d 924, 925 [2000]).

Plaintiff must provide coverage to defendant on the zone-of-danger cause of action. In an apparent attempt to avoid liability under the zone-of-danger doctrine (see Lavanant v General Acc. Ins. Co. of Am., supra at 630-631 [holding that mental injuries suffered by someone in zone of danger are covered by insurance policy defining bodily injury as "bodily injury, sickness or disease"]), plaintiff modified the definition of bodily injury in its automobile liability policies. The insurance policy here covers "bodily injury," defined as "bodily injury to a person and sickness, disease or death which results from it." This provision may be interpreted by the average insured in two different manners. It could mean that the sickness, disease or death must inure to the same person who suffered the bodily injury. Alternatively, it could mean that any sickness, disease or death to any person is covered if it results from bodily injury to the same or a different person. Here, the pedestrian suffered severe bodily injury resulting in his own death, which all parties agree is covered. The son suffered mental, psychological and emotional injuries which resulted from the bodily injury to his father, a situation falling under the second interpretation. The average insured owner would expect that such injuries suffered as a result of witnessing a relative's death while in the zone of danger would be covered under this policy.

The ambiguity in the "bodily injury" definition is further enhanced by language in the "Limits of Liability" section of the policy that states that "'[b]odily injury to one person' includes all injury and damages to others resulting from this bodily injury" (emphasis added). That language anticipates that injury to others will be covered when only one person is physically injured, implicitly including zone-of-danger injuries. Construing the policy's ambiguity against the insurer, plaintiff must indemnify defendant for the zone-of-danger cause of action.

Luis Aguilar, Plaintiff-Appellant,

v

Darryl L. Hicks, Defendant-Respondent.






Raymond Schwartzberg & Associates, PLLC, New York
(Raymond Schwartzberg of counsel), for appellant.

Koors and Jednak, Bronx (Jennifer J. Tunnard of counsel), for
respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about May 9, 2003, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

While plaintiff's physician appears to rely on MRIs in concluding that plaintiff "has sustained permanent partial functional impairment of the lumbar spine, spinal roots and knees," he simply fails to indicate the extent or degree of any resulting physical limitations (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350). Indeed, from the report, it does not appear that plaintiff has lost any normal range of motion in his supposedly injured back and knees. Concerning the scar above his eye, plaintiff offers no medical evidence as to its severity, and, moreover, upon review of the photographs that plaintiff submitted, the scar does not constitute a "significant disfigurement" within the meaning of the statute (see Hutchinson v Beth Cab. Corp., 207 AD2d 283, 283-284).

[*1]Insurance Company of North America, et al., Plaintiffs-Appellants-Respondents,

v

EMCOR Group, Inc., Defendant-Respondent-Appellant, University Mechanical and Engineering Contractors, Defendant-Respondent, Continental Casualty Company, Defendant.
Insurance Company of North America, et al., Plaintiffs-Respondents, EMCOR Group, Inc., Defendant-Appellant, University Mechanical and Engineering Contractors, et al., Defendants.






Hodgson Russ LLP, Buffalo (Michael P. Murphy and Kevin D.
Szczepanski of counsel), for appellants-
respondents/respondents.

Saxe Doernberger & Vita, P.C., Hamden, CT (Edwin L.
Doernberger, of the Connecticut Bar, admitted pro hac vice, of
counsel), for respondent-appellant/appellant and University
Mechanical and Engineering Contractors, respondent.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered July 3, 2001, which, inter alia, granted defendants' motion to dismiss insofar as to dismiss the complaint as against defendant University Mechanical and Engineering Contractors (UMEC) but denied that part of defendants' motion seeking dismissal of the complaint as against EMCOR Group, Inc. (EMCOR), unanimously modified, on the law, to the extent of dismissing the complaint as against EMCOR, and otherwise affirmed, with one bill of costs in favor of defendant EMCOR [*2]payable by plaintiffs. The Clerk is directed to enter judgment in favor of EMCOR Group, Inc. dismissing the complaint as against it. Appeal from order, same court and Justice, entered March 1, 2002, which, to the extent appealed from, denied EMCOR's motion for leave to renew its motion to dismiss the complaint as against it, unanimously dismissed, without costs, as academic in light of the foregoing.

The court properly dismissed the complaint as against UMEC, a California corporation with its principal place of business in California, on the ground that UMEC did not have sufficient minimum contacts with New York to be subject to long-arm jurisdiction pursuant to CPLR 302(a)(1). UMEC had no contacts in New York and although the insurance policies, pursuant to which plaintiffs seek declarations that they were not obligated to defend and indemnify UMEC in an action arising in California, were negotiated and entered into in New York, the negotiations were conducted by EMCOR, UMEC's parent company, and EMCOR's insurance brokerage representative, and the existence of an agency upon which a finding of jurisdiction may be predicated may not be inferred from the mere existence of a parent-subsidiary relationship (see Frummer v Hilton Hotels Intl., 19 NY2d 533, 538, cert denied 389 US 923). Further discovery on the jurisdictional issue was not warranted since plaintiffs did not make a "sufficient start" in demonstrating that UMEC had the requisite minimum contacts with this jurisdiction (cf. Peterson v Spartan Indus., 33 NY2d 463, 467).

The complaint as against EMCOR should have been dismissed for failure to state a cause of action. Dismissal of plaintiffs' first two claims, seeking declarations that they had no obligation to defend and indemnify EMCOR in the California action, is warranted because EMCOR was not a party to that action. The third cause of action, seeking reimbursement from EMCOR, as the parent company of UMEC, for defense costs and indemnity payments incurred in the California action, should also be dismissed. Because UMEC was a separate named insured under the subject insurance policies, EMCOR was not obligated under
those policies to reimburse plaintiffs for UMEC's defense and indemnification in the California action.

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

ENTERED: JULY 22, 2004

 

 

MARK HAUSMAN, Appellant,

v

C.P. HOFFMAN, Respondent.

 

MEMORANDUM AND ORDER

Calendar Date: May 27, 2004
Before: Cardona, P.J., Crew III, Peters, Mugglin and Rose, JJ.


Law Office of Kurt Mausert,
Saratoga Springs (Susan
J. Civic of counsel), for appellant.

Horigan, Horigan, Lombardo & Kelly P.C.,
Amsterdam (Derek L. Hayden of counsel), for respondent.

Crew III, J.

Appeal from an order of the Supreme Court (Williams, J.), entered July 31, 2003 in Saratoga County, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint.

On April 27, 1998, plaintiff was involved in a motor vehicle accident at the intersection of Balltown Road and River Road in the Town of Clifton Park, Saratoga County, and he thereafter commenced this action to recover damages for neck and back injuries sustained as a result thereof. Following joinder of issue and discovery, defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). Supreme Court granted defendant's motion and plaintiff now appeals.

Plaintiff, as so limited by his brief, contends that he suffered a serious injury as the result of a permanent loss of use of his cervical and lumbar spine and that he was unable to perform substantially all of the material acts that constituted his usual and customary daily activities for 90 of the 180 days immediately following the accident. With regard to plaintiff's serious injury claim based upon the permanent loss of use category, defendant demonstrated his prima facie entitlement to judgment through the affidavit of Paul Jones, a licensed physician, who examined plaintiff six months following the accident and opined that although plaintiff had suffered a cervical injury as the result of the accident, such injury was fully resolved at the time of his examination. While plaintiff, in opposition to the motion, submitted medical evidence that [*2]he sustained a vertebral sprain/strain resulting in pain that is permanent in nature, nowhere has plaintiff demonstrated that the claimed loss of use of his cervical and lumbar spine is "total," which is fatal to his claim (see Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]).

Turning to plaintiff's allegation of serious injury in the 90/180 day category, defendant again demonstrated his entitlement to summary judgment through Jones's affidavit, wherein Jones averred that plaintiff's own history indicated that he lost no time from work as a result of the accident. Defendant also relied upon excerpts of plaintiff's deposition testimony, wherein he was asked, "Would your injuries from the accident prevent you from doing any activities at all?", to which he responded, "Probably limit me from doing as much as what I would like to do." Plaintiff further was asked, "Can you isolate anything that you could do before the accident that you can't do or you do less since the accident?", to which he responded, "Probably but there again, [you] put me on the spot, I can't come up with anything right off the top of my head." That testimony hardly supports a claim that plaintiff was prevented from performing substantially all of the material acts that constituted his usual and customary daily activities. Suffice to say, plaintiff produced no evidence to contradict defendant's submissions and, accordingly, defendant's motion for summary judgment dismissing the complaint was properly granted.