8/23/04 Sheila Grant v. Mamadou Fofana
Appellate Division, Second Department
Serious Injury Not Established By First Time Examination By Plaintiff’s Physician and Subjective Complaints
Plaintiff offered no explanation for the gap of nearly 16 months between the conclusion of her medical treatments and her physician’s examination of her for the first time in response to the defendants' motions for dismissal based on failure to meet the serious injury threshold. Despite evidence in the plaintiff's medical history of treatment for lower back pain approximately five months before the instant accident, and despite his claim that he reviewed the plaintiff's medical records, the plaintiff's physician never mentioned the plaintiff's prior medical history, nor offered any other evidence as to the plaintiff's condition before the instant accident. The court found that plaintiff's physician's findings of restrictions in motion were based solely upon the plaintiff's subjective complaints of pain and her claim that she was unable to return to work for two months following the accident was not supported by any competent medical evidence.
Jeng-Jen Chen v Marc
Apppellate Division, First Department
Serious Injury Not Established by Weak and Unsupported Affidavit of Non-Treating Physican
The affirmation of a non-treating physician based upon his first and only examination of plaintiff two years after the accident, in which the only abnormality noted was the subjective finding of "tenderness" of plaintiff's cervical spine, without supporting objective tests, was insufficient to create questions of fact let alone demonstrate that plaintiff suffered a serious injury. Nor does the undated affirmation of plaintiff's treating physician, state what objective tests, if any, were used to determine any restriction of motion. While referring to unsworn reports of MRI scans of plaintiff's cervical and lumbar spine conducted more than 10 months after the accident, he also fails to state that he actually reviewed the MRIs themselves, as opposed to merely reading the narrative reports.
Appellate Division, Second Department
Insurer Need Not Comment on
Injured Party’s Notice of Accident in Letter to Insured Disclaiming for
Insured’s Late Notice – But [as a reminder] Must Separately Deny on That Basis
When "the insured is the first to notify the carrier . . . any subsequent information provided by the injured party is superfluous for notice purposes and need not be addressed in the notice of disclaimer issued by the insurer". Where, as here, the insurer does not dispute receiving notice from its insured, "the only issue with respect to the injured party [is] whether the efforts of the injured party to facilitate the providing of proper notice were sufficient in light of the opportunities to do so afforded it under the circumstances". At this juncture, there remains an issue of fact as to whether the injured plaintiff acted diligently in ascertaining the identity of Valley Stream's insurer and in notifying the defendant of the accident.
Note: this case ought to remind insurer’s that in New York, an injured person has a separate and distinct right to give notice of an accident to a carrier pursuant to the provisions of Insurance Law Section 3420. If that notice is given late, the insurer must separately disclaim based on the injured person’s late notice or the insurer may lose its right to do so under the doctrine of waiver.
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.
8/24/04 ACE AMERICAN INSURANCE COMPANY V. WALKER
Third Appellate District – California
No duty to defend other insurance policy
ACE brought this declaratory relief action to determine coverage issues relating to a commercial general liability insurance policy issued to its insured. Walker was injured in an accident while she was a passenger in a car owned by ACE’s insured. The trial court correctly determined there was no possibility of coverage under the policy. Walker sustained serious injuries in a car accident that occurred while she was a passenger in a car driven by Kai Sheng Hou (Kai). The title to the automobile in which the collision occurred was held by Kai’s father, Hsin Jen Hou (Hsin). Hsin, who lived in southern California, had purchased the car for his son’s use. Kai lived in the Sacramento area, and the accident occurred when Kai was in Sacramento. Walker sued Hsin, Kai, the Buta Buddhism Research Center (BBRC), and Hou’s Institution. BBRC is a religious corporation formed by Hsin. Hou’s Institution was a name under which Hsin obtained liability insurance for his business for the conduct of Buddhism studies. ACE insured Hou’s Institution under a CIGNA Property and Casualty Commercial General Liability Policy. Walker’s claim was tendered to Hsin’s automobile insurer, Farmers Insurance Group (Farmers). Farmers agreed to provide a defense for Hsin and BBRC. Hsin and BBRC also tendered the claim to ACE. The complaint sought a judicial declaration that ACE had no duty to defend or indemnify from the claims asserted in the Walker action. On October 30, 2001, ACE filed a first amended complaint adding Walker as a defendant. On August 1, 2002, ACE filed a summary judgment motion in its declaratory relief action. On October 9, 2002, Walker filed a cross-complaint in the ACE action. As to the summary judgment motion, the trial court found the policy’s express exclusion for any claim for “bodily injury or property damage arising from the ownership, maintenance, use or entrustment to others of any auto owned or operated by or rented or loaned to any insured” to be dispositive of the issue of coverage.
Submitted by: Debra Heron [McNeer, Highland, McNunn and Varner, L.C.]
8/20/04 SPEROS AND WEST AMERICAN INS. CO. v. FRICKE, et al.
Utah Supreme Court
Intentional Acts Exclusion Not
Enforceable Against Accident Victims Up to the Minimum Liability Limits
Prescribed By Statute; Where Insurer Breached Its Duty to Defend It Is Bound by
Default Judgment Against Insured
Jeffery Hiatt was a passenger in a Jeep owned and driven by Kimberly Fricke and insured by Nationwide Mutual Insurance Company. While Fricke was driving, Hiatt grabbed the Jeep’s steering wheel, the Jeep veered into oncoming traffic and crashed into Ted Speros’ vehicle, which resulted in injury to Speros. Speros was insured by West American Insurance Company. West American compensated Speros for his injuries and then demanded reimbursement from Nationwide under an asserted right of subrogation. Nationwide determined that Fricke was not negligent and that its policy with Fricke did not extend coverage to Hiatt in this matter. Speros and West American sued Hiatt, Fricke, and Nationwide. A default judgment was entered against Hiatt. The Court held that, because Utah statutory law only allows for reimbursement of PIP payments through arbitration, West American lacked standing to sue Nationwide for reimbursement of PIP payments it made to Speros. The Court also held that the Nationwide Policy provided coverage to Hiatt as a permissive user, and because the Utah legislature enacted a comprehensive statutory scheme mandating minimum liability for motor vehicle, the intentional acts exclusion in the Nationwide Policy was unenforceable against accident victims up to the minimum liability limits prescribed by the statute. Further, because Nationwide did not respond to the complaint on behalf of Hiatt, it exposed both Hiatt and itself to risk of a default judgment in breach of its duty to defend, and was bound by the resulting default judgment.
Submitted by: Bruce D. Celebrezze & Michelle M. Hancharik (Sedgwick, Detert, Moran & Arnold LLP)
8/19/04 PACIFIC INS. CO. v. BURNET TITLE, INC.
Eighth Circuit Court of Appeals
E&O Insurer had a Duty to
Defend Its Insured in a Class Action Lawsuit which Alleged Insured Overcharged
Clients for Closing Costs and Failed to Disclose Material Information In Real
Estate Transaction Settlement Statements
Pacific Insurance Company issued an Errors and Omissions Policy to Burnet Title, Inc. which provided coverage for negligent acts, errors, or omissions in the rendering of or failure to render professional services. Plaintiffs filed a class action lawsuit against Burnet which alleged that Burnet routinely charged customers $25 for each instance of courier delivery involved in a loan closing, even though the actual charge by the third-party courier performing the delivery service was less than $25. Plaintiffs further alleged that Burnet violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617, by (a) failing to disclose on a settlement statement the actual cost of the courier services and (b) charging an unearned fee. After agreeing to participate in Burnet’s defense, Pacific asserted that none of the claims in the class action were covered claims under the Policy because (1) the complaint alleged intentional rather than negligent acts; (2) the Policy’s definition of “damages” excluded return or reimbursement of “professional services,” and claimed that the return of overcharged fees did not constitute “professional services;” and (3) that attorneys fees did not constitute “damages” under the Policy. The Eighth Circuit Court of Appeals held that Pacific had a duty to defend Burnet in the class action lawsuit. The Court held that Burnet could have negligently violated RESPA, which triggered Pacific’s duty to defend. The Court also held that an allegation that a real estate service failed to disclose costs accurately on settlement statements related to its professional conduct and is the type of professional misconduct usually covered under an E&O Policy, which also triggered Pacific’s duty to defend. Further, because RESPA distinguished between “costs” and “fees,” the Court concluded that attorneys fees sought under that statute constituted “damages” within the meaning of the Policy.
Submitted by: Bruce D. Celebrezze & Michelle M. Hancharik (Sedgwick, Detert, Moran & Arnold LLP)
8/13/04 AKINS V. HARCO INS. CO.
Ohio Court of Appeals
Insurance Contract Will Be
Interpreted By Local Law Of The State Parties Understood As Principal Location
Of Insured Risk
An individual employed by Simplified Employment Services was operating a tractor trailer leased by JMC Logistics from Penske Truck Leasing. He ran out of gas and called Hammer’s Towing. When the service van arrived, the stranded motorist exited the tractor and was struck and killed by a drunk driver, who was underinsured. The estate filed a declaratory judgment action seeking underinsured motorist coverage from JMC, Penske, and Hammer. With respect to Harco, JMC’s insurer, the court granted summary judgment in favor of Harco, applying Michigan law. The estate appealed, arguing that Ohio law should apply because the accident happened in Ohio. The court held that Michigan law was proper, even though the accident happened in Ohio and some business and traveling was done in Ohio because JMC was a Michigan corporation with principal place of business in Michigan, the insurance contract was negotiated in Michigan, most of its vehicles were garaged in Michigan, and the vehicle in use at the time of the accident was licensed and registered in Michigan.
8/12/04 GLOBE INDEM. CO. V. TRAVELERS INDEM. CO., ET AL.
Colorado Court of Appeals
Landslide Years After
Excavation Project Was Occurrence Triggering Coverage, Not Continuous Slippage
An excavation company was insured by four different CGL insurers between 1992 and 1998. Between 1991 and 1993, the company was responsible for excavation work on a housing development. In 1998, a landslide occurred in the housing development, and the homeowners sued the excavation company, claiming it improperly graded and compacted their lots. The four insurers jointly funded the companies defense and settlement, reserving rights to seek indemnification from one another. Three insurers sought a declaratory judgment against Travelers, the insurer in 1998, and the court found that the insurers were entitled to indemnification from Travelers. On appeal, Travelers argued that the damage was caused by continuous slippage over time, culminating in the landslide in 1998. The court held that the trigger of occurrence coverage was when the actual damage occurred, and even though there may have been slippage over time, the landslide caused the actual damage, and occurred during the Travelers policy period.
Submitted by: Bruce D. Celebrezze and Erin Adrian (Sedgwick, Detert, Moran & Arnold LLP)
Hurwitz & Fine, P.C. is a
full-service law firm
providing legal services throughout the State of New York.
Scott C. Billman
Insurance Coverage Team
Dan D. Kohane, Team Leader
Michael F. Perley
Scott C. Billman
Audrey A. Seeley
Fire, First-Party and Subrogation Team
James D. Gauthier, Team Leader
Jody E. Briandi
Philip M. Gulisano
No-Fault/SUM Arbitration Team
Dan D. Kohane, Team Leader
Audrey A. Seeley
Scott C. Billman, Team Leader
Dan D. Kohane
Moore, etc., et al., plaintiffs,
Allen Ewing, et al., defendants. (Action No. 1) (Index No. 3863/00)
Rosemary Briggs Moore, respondent-appellant,
New York Casualty Insurance Company, appellant-respondent. (Action No. 2) (Index No. 3209/01)
Cook, Tucker, Netter & Cloonan, P.C., Kingston, N.Y. (Eric M.
Kurtz of counsel), for appellant-respondent.
Walsh, Wicks & Salisbury, Red Hook, N.Y. (Douglas F.
Wicks of counsel), for respondent-
In an action to recover damages for personal injuries (Action No. 1) and a related action (Action No. 2) for a judgment declaring that New York Casualty Insurance Company is obligated to defend and indemnify Rosemary Briggs Moore in Action No. 1, which actions were joined for trial, New York Casualty Insurance Company, the defendant in Action No. 2, appeals (1) from an order of the Supreme Court, Dutchess County (Dillon, J.), dated August 28, 2002, which denied its motion for summary judgment and granted the motion of Rosemary Briggs Moore for summary judgment in Action No. 2, and (2), by permission, from so much of an amended order of the same court dated June 11, 2003, as, in effect, upon reargument, denied that branch of its motion which was for summary judgment on the issue of whether it is obligated to [*2]defend and indemnify Rosemary Briggs Moore on the claims brought against her by the plaintiff Sara Fisher in Action No. 1, and granted that branch of the motion of Rosemary Briggs Moore which was for summary judgment on that issue, and Rosemary Briggs Moore (1) cross-appeals, as limited by her brief, from stated portions of the order dated August 28, 2002, and (2) appeals, as limited by her brief, from stated portions of an order of the same court dated October 23, 2002.
ORDERED that the appeal by New York Casualty Insurance Company and the cross appeal by Rosemary Briggs Moore from the order dated August 28, 2002, are dismissed, without costs or disbursements, as that order was superseded by the amended order dated June 11, 2003, made, in effect, upon reargument; and it is further,
ORDERED that on the court's own motion, the notice of appeal by Rosemary Briggs Moore from the order dated October 23, 2002, is deemed a premature application for leave to cross-appeal from so much of the amended order dated June 11, 2003, as, in effect, upon reargument, denied that branch of her motion which was for summary judgment declaring that New York Casualty Insurance Company is obligated to defend and indemnify her for the claims asserted against her on behalf of the plaintiff Emma Moore in Action No. 1, and granted that branch of New York Casualty Insurance Company's motion which was for summary judgment on that issue, and the application is granted (see CPLR 5520[c], 5701[c]); and it is further,
ORDERED that the amended order is reversed insofar as appealed and cross-appealed from, on the law, without costs or disbursements, that branch of New York Casualty Insurance Company's motion which was for summary judgment declaring that it is not obligated to defend and indemnify Rosemary Briggs Moore for the claims asserted against her in Action No. 1 by the plaintiff Sara Fisher individually is granted and that branch of Rosemary Briggs Moore's motion which was for a declaration of coverage for those claims is denied, and that branch of Rosemary Briggs Moore's motion which was for summary judgment declaring that New York Casualty Insurance Company is obligated to defend and indemnify her for the claims asserted against her in Action No. 1 on behalf of the plaintiff Emma Moore is granted and that branch of New York Casualty Insurance Company's motion which was for a declaration that it is not obligated to defend and indemnify Rosemary Briggs Moore for such claims is denied, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring that New York Casualty Insurance Company is obligated to defend and indemnify Rosemary Briggs Moore in Action No. 1 for the claims asserted against her on behalf of the plaintiff Emma Moore, and that New York Casualty Insurance Company is not obligated to defend and indemnify Rosemary Briggs Moore for the claims asserted against her in Action No. 1 by Sara Fisher, individually.
On May 7, 2000, 10-year-old Emma Moore (hereinafter Emma) allegedly was bitten by a dog while on the property of her grandmother, Rosemary Briggs Moore (hereinafter Moore). Moore was insured under a homeowners policy (hereinafter the policy) issued by New York Casualty Insurance Company (hereinafter NY Casualty). On or about May 12, 2000, Moore notified NY Casualty about the incident. A claims representative of NY Casualty interviewed Moore by telephone on or about May 18, 2000. NY Casualty received a letter dated May 11, 2000, and stamped "received" on May 22, 2000, from attorneys representing Emma notifying it of the dog attack on Moore's premises and the claim alleging negligent supervision. By letter dated June 27, 2000, Emma's counsel sent to NY Casualty the police investigation report and copies of medical bills. By letter dated July 7, 2000, NY Casualty disclaimed [*3]coverage on the basis that Emma was a resident of Moore's home, which would classify her as an insured under the policy and subject her to coverage exclusions for (1) personal liability for bodily injury to an insured, and (2) medical payments for bodily injury to an insured.
Shortly thereafter, on August 29, 2000, Emma's mother, Sara Fisher (hereinafter Fisher), commenced the underlying personal injury action (hereinafter Action No. 1) on behalf of Emma and individually against Moore and the neighbors who own the dog that bit Emma. NY Casualty first received notice of Fisher's individual claims, which were for loss of services and medical expenses, upon receipt of the summons and complaint. By letter dated September 27, 2000, NY Casualty acknowledged receipt of the summons and complaint and referred Moore to the exclusions regarding bodily injury to an insured and for "medical payments to others."
Moore commenced the declaratory judgment action (hereinafter Action No. 2) against NY Casualty seeking a declaration that NY Casualty is obligated to defend and indemnify her in Action No. 1, and NY Casualty counterclaimed for a judgment declaring that Moore is not covered under the policy for the plaintiffs' claims in Action No. 1. Moore moved for summary judgment, asserting, inter alia, that NY Casualty's notice of disclaimer was untimely. In opposition, NY Casualty's attorney stated that after the telephone interview with Moore on May 18, 2000, NY Casualty continued to receive information about the underlying incident from Emma's counsel. By amended order dated June 11, 2003, the Supreme Court, inter alia, determined that NY Casualty is not obligated to defend and indemnify Moore for claims asserted on behalf of Emma, but is obligated to defend and indemnify Moore for claims asserted on behalf of Sara Fisher. We disagree.
Pursuant to Insurance Law § 3420(d), an insurance carrier is required to provide the insured with timely notice of its disclaimer or denial of coverage on the basis of a policy exclusion (see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648-649; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-189; Campos v Sarro, 309 AD2d 888) and will be estopped from disclaiming liability or denying coverage if it fails to do so (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029; Mount Vernon Fire Ins. Co. v Gatesington Equities, 204 AD2d 419, 420; Allstate Ins. Co. v Centennial Ins. Co., 187 AD2d 690, 691). "[T]imeliness of an insurer's disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage" (First Fin. Ins. Co. v Jetco Contr. Corp., supra at 68-69). The determination of whether a notice of disclaimer is untimely often is a question of fact dependent on all the circumstances of the case (see First Fin. Ins. Co.v Jetco Contr. Corp., supra at 70; Hartford Ins. Co. v County of Nassau, supra at 1030; Murphy v Hanover Ins. Co., 239 AD2d 323, 324). It is the responsibility of the insurer to explain its delay, and an unsatisfactory explanation will render the delay unreasonable as a matter of law (see First Fin. Ins. Co.v Jetco Contr. Corp., supra at 70).
Here, NY Casualty interviewed Moore about the occurrence on May 18, 2000, and received a letter regarding the claim from Emma's attorneys by May 22, 2000. NY Casualty did not send its notice of disclaimer until July 7, 2000, which is approximately 45 days after it had information about the claim. The evidence in the record indicates that NY Casualty had all the information regarding Emma's residence needed to determine her status as an "insured" under the policy by May 22, 2000; additional information provided after that date did not pertain to Emma's residency. Accordingly, NY Casualty's unexplained delay in disclaiming coverage was [*4]unreasonable as a matter of law (see First Fin. Ins. Co. v Jetco Contr. Corp., supra at 70) and its disclaimer was untimely as a matter of law. Therefore, NY Casualty is required to defend and indemnify Moore with respect to the claims asserted on behalf of Emma.
There is no evidence in the record, however, that the notice of disclaimer of coverage was untimely with regard to providing a defense and indemnification with respect to Fisher's derivative claims. Accordingly, it is necessary to determine whether the policy exclusions upon which NY Casualty based its disclaimer of coverage apply to Fisher's claims. The Supreme Court determined, as asserted by Moore, that the exclusions for injury to an insured and for medical expenses to a resident are inapplicable to Fisher's claims, presumably because Fisher was not an insured or a resident of Moore's household. We disagree.
Emma, who was a resident of Moore's household when the injury occurred, is an "insured" as defined in the policy. Although Emma allegedly sustained a "bodily injury" as a result of the dog attack, exclusions for bodily injury to an insured and for medical expenses for bodily injury to regular residents of the household would have precluded coverage for Emma's claims but for the late notice of disclaimer. The issue, therefore, is whether the same exclusions apply to Fisher's derivative claims even though she was not an insured or a resident of the Moore household.
The policy defines "[b]odily injury" as "bodily harm, sickness or disease, including required care, loss of services and death that results." The "Liability Coverages" section of the policy includes "Coverage E-Personal Liability," under which NY Casualty will provide a defense and indemnification if "a claim is made or a suit is brought against an 'insured' for damages because of 'bodily injury' . . . caused by an 'occurrence' to which this coverage applies." Pursuant to exclusion 2.f., the personal liability coverage does not apply to "'[b]odily injury' to you or an 'insured ' . . . as defined."
The Liability Coverages section of the policy also includes Coverage F, Medical Payments to Others, which states, in relevant part:
"We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing 'bodily injury.' * * * This coverage does not apply to you or regular residents of your household except 'resident employees.'"
Exclusion 3.d. states that Coverage F does not apply to "bodily injury" to "any person, other than a 'residence employee' of an 'insured,' regularly residing on any part of the 'insured location.'"
Moore asserts that these exclusions do not apply to Fisher's claims. To accept this argument, this court is required to conclude that Fisher's claim for loss of services exists independently of Emma's right to recover for her bodily injuries pursuant to the insurance policy. New York courts, however, consider a parent's claim for loss of services and medical expenses associated with a child's injury to be derivative of the child's claim (see Maidman v Stagg, 82 AD2d 299, 301, 303; see also Buckley v National Frgt., Inc., 220 AD2d 155, 157-158, affd 90 NY2d 210). In the context of insurance policy interpretation, New York courts have held that because derivative claims do not constitute an independent bodily injury, a person asserting a [*5]derivative claim is not entitled to a separate per person limitation of liability; rather, the derivative claims are included in the per person limitation of liability applicable to the injured individual (see Champagne v State Farm Mut. Auto. Ins. Co., 185 AD2d 835; Redcross v Aetna Cas. and Sur. Co., 146 AD2d 125, 126-127).
Here, a consistent result under New York law requires that under the policy's definition of "bodily injury," there must first be a covered bodily injury to an injured person before there is coverage for a resulting loss of services claim. This is the conclusion reached by other jurisdictions that have interpreted the same or similar provision that, like New York, consider a parent's claims to be derivative of the child's claims (see e.g. American Motorists Ins. Co. v Moore, 970 SW2d 876, 878-879 [Mo]; Vierkant v AMCO Ins. Co., 543 NW2d 117 [Minn]). In contrast, courts in other jurisdictions that consider a parent or spouse's claims to be independent injuries, not derivative, do not require coverage for the physically injured party to find coverage for the parent or spouse's claims (see e.g. Worcester Ins. Co. v Fells Acres Day Sch., 408 Mass 393, 413-414, 558 NE2d 958, 971-972). Thus, under New York law, the exclusion for bodily injury to Emma, an insured, which would be applicable in this instance but for the late notice of disclaimer, bars Fisher's derivative claim for loss of services. Similarly, the only medical expenses incurred by Fisher were for Emma's injuries. Accordingly, the exclusion for medical expenses for bodily injury to residents of Moore's household applies to Fisher's derivative claim for medical expenses.
The parties' contentions concerning coverage for the Holts's cross claim are improperly raised for the first time on appeal.
Since this is a declaratory
judgment action, we remit the matter to the Supreme Court, Dutchess County, for
entry of a judgment declaring that NY Casualty is obligated to defend and
indemnify Moore in Action No. 1 for the claims asserted on behalf of Emma, and
that NY Casualty
is not obligated to defend and indemnify Moore in Action No. 1 for Fisher's derivative claims (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
PRUDENTI, P.J., KRAUSMAN, TOWNES and SPOLZINO, JJ., concur.
SCOTT WEILL, Plaintiff-Respondent,
LIBERTY LINES TRANSIT, INC., Defendant-Appellant.
Defendant appeals from an
order of the Civil Court, Bronx County, dated February 21, 2003 (Arthur F.
Engoron, J.) which denied its motion for summary
judgment dismissing the complaint.
Order entered February 21, 2003 (Arthur F. Engoron, J.) affirmed, with $10 costs.
We agree that the documentation submitted to defendant concerning the vehicular accident in which plaintiff was allegedly injured constituted, in the aggregate, a valid, timely notice of claim. The record discloses that the driver of the bus involved in the incident submitted a written report concerning the incident; that plaintiff sent a letter to defendant's claims administrator, at defendant's request, reporting the time, place and manner of the incident and the items of damage then known; and that plaintiff's counsel wrote to defendant "in regard to injuries" sustained by plaintiff and advising of "further action." Considered together, these timely submissions were adequate to constitute a valid notice of claim pursuant to General Municipal Law § 50-e (see Santiago v Liberty Lines Tr., 259 AD2d 362 [1st Dept 1999]; Gallagher v Liberty Lines Tr., 211 AD2d 440 [1st Dept 1995]; Miller v Liberty Lines Tr., 208 [*2]AD2d 454 [1st Dept 1994]; Losada v Liberty Lines Tr., 155 AD2d 337 [1st Dept 1989]; cf. Delisca v Liberty Lines Tr., 272 AD2d 291 [2d Dept 2000]; Zydyk v New York City Tr. Auth., 151 AD2d 745 [2d Dept 1989]).
This constitutes the decision and order of the court.
S & M SUPPLY INC., a/a/o
DOLLAR RENT A CAR SYSTEMS INC., Respondent.
Appeal by plaintiff from an
order of the Civil Court, Kings County (J. Battaglia,
J.), entered June 6, 2003, which denied with leave to renew, its motion for an
order directing the clerk to enter a default judgment against defendant.
Order unanimously affirmed without costs.
Plaintiff commenced the instant action to recover the sum of $2,176.29 in first-party no-fault benefits for medical supplies furnished to its assignor. Upon defendant's failure to appear or answer, plaintiff moved for an order directing the clerk to enter a default judgment against defendant for the principal sum of $2,176.29, plus preset statutory attorney's fees of 20% and statutory interest of 2% per month, which motion was unopposed. The motion was denied with leave to renew, the court finding that plaintiff failed to establish prima facie that defendant was liable to plaintiff's assignor for first-party no-fault benefits.
CPLR 3215 (f) provides that upon an application for a default judgment, the applicant must file proof of service of the summons and the complaint, and "proof by affidavit made by the party of the facts constituting the claim, the default and the amount due."
Generally, a plaintiff establishes a prima facie case of entitlement to no-fault benefits on a [*2]motion for summary judgment by proof of submission of a proper proof of claim (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Proper proof of claim consists of either the completed statutory forms (11 NYCRR 65.15 [c] ) or their functional equivalent (11 NYCRR 65.15 [d]  ["insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form"]) which must establish "proof of the fact and amount of the loss sustained" (Insurance Law § 5106 [a]).
Plaintiff contends that its submission of the statutory forms established "proof of the fact and the amount of the loss sustained" and that the affidavit of its medical billing officer established a proper billing. Moreover, inasmuch as the damages sought were statutorily fixed, they were for a "sum certain or for a sum which can by computation be made certain" (CPLR 3215 [a]), and the court below therefore erred in denying its motion.
In our opinion, the submission to the court of the instant proofs of claim coupled with the affidavit of plaintiff's billing manager did not constitute sufficient proof of the "facts constituting the claim, the default and the amount due" (CPLR 3215 [f]), inasmuch as plaintiff's billing manager averred in the affidavit that the billing for the medical equipment had been set according to the Workers' Compensation Law Fee Schedules. While fees for physicians' services are governed by such schedules, fees for medical equipment and supplies are set by insurance regulation, specifically 11 NYCRR App. 17-C, Part E (b) (1), which states that "for medical equipment and supplies . . . provided by a physician or medical supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider." Since the averment of plaintiff's billing manager is to the effect that billing (for the medical equipment) was set according to the Workers' Compensation Law Fee Schedules, this statement was meaningless, and its inclusion in the affidavit raised an issue as to plaintiff's entitlement to the particular amount allegedly due. Thus the damages sought could no longer be deemed to be for a "sum certain or for a sum which can by computation be made certain" (CPLR 3215 [a]). Accordingly, upon the instant motion papers, the court's denial of plaintiff's motion was proper. Plaintiff may renew its motion for a default judgment upon a showing of compliance with CPLR 3215.
To the extent that at oral
argument defense counsel submitted a portion of the transcript of the
examination under oath of plaintiff's assignor, which indicated the possibility
of a fraudulent claim by plaintiff, such evidence is dehors
the record and, accordingly, we do not reach that issue (see
Chimarios v Duhl,
152 AD2d 508 ). We note, however, that defendant may, in an appropriate
manner, raise the matter in the court below.
Decision Date: July 21, 2004
Glencott Realty Corp., defendant third-party plaintiff-respondent; Asbestway Abatement Corp., third-party defendant, Insurance Corporation of New York, third-party defendant-appellant. (Index Nos. 4244/00 and 75805/00)
White, Quinlan & Staley, Garden City, N.Y. (Regis E. Staley, Jr.,
and Smith Mazure Director Wilkins Young & Yagerman, LLP [Joel
M. Simon] of counsel), for third-party defendant-appellant.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Eric A.
Portuguese and Eric B. Stern of
counsel), for defendant third-party plaintiff-
In an action, inter alia, to recover damages for personal injuries, the third-party defendant Insurance Corporation of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (D. Schmidt, J.), dated February 4, 2003, as denied that branch of its cross motion which was for summary judgment dismissing the third-party complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for personal injuries allegedly sustained on November 11, 1999, at the workplace of the defendant third-party plaintiff, while the plaintiff was employed by the third-party defendant Asbestway Abatement Corp. (hereinafter AAC). At the time of the accident, AAC was covered under a general liability insurance policy issued by the appellant. The defendant commenced a third-party action against AAC and the appellant. [*2]
On the cross motion for
summary judgment, the appellant contended that it timely disclaimed coverage of
the accident based upon the insured's failure to immediately send it a copy of
the summons and complaint in the action. However, by letter dated April 17,
2000, the appellant received notice that the action was pending. On June 19,
2000, the appellant disclaimed coverage solely based upon the insured's failure
to promptly notify it of the action. This disclaimer was untimely as a matter of
Pennsylvania Millers Mut. Ins. Co. v
238 AD2d 491; Matter of
Allstate Ins. Co. v Souffrant, 221 AD2d 434;
Matter of Aetna
Sur. Co. v Rosen,
205 AD2d 684; Matter of
Nationwide Mut. Ins. Co. v Steiner, 199 AD2d
507). An insurer's justification for denying coverage is strictly limited to the
grounds stated in the notice of disclaimer (see General Acc. Ins. Group v
Cirucci, 46 NY2d 862). Accordingly, an insurer,
which denied coverage on a specific ground, may not later deny coverage on
another ground known to it at the time of its disclaimer (see
Sisco v Nations Tit. Ins. of N.Y., 278 AD2d 479;
Hubbell v Trans World Life Ins. Co. of N.Y., 54 AD2d 94). Since the
appellant knew at the time of its disclaimer that it had not received a copy of
the summons and complaint, and based its disclaimer upon the insured's failure
to promptly notify it of the action and not on this alternate ground, the
appellant could not later rely upon this alternate ground to disclaim coverage.
SMITH, J.P., KRAUSMAN, ADAMS and SKELOS, JJ., concur.
James Edward Pelzer
Clerk of the Court
Mildred Cruz, et al., Plaintiffs-Appellants,
Ruby M. Castanos, Defendant-Respondent.
Levine & Gilbert, New York (Richard A. Gilbert of counsel),
James P. Nunemaker, Jr. & Associates, Uniondale (Linda
Meisler of counsel), for respondent.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about March 11, 2003, which, to the extent appealable, denied plaintiffs' motion for leave to renew an order (same court and Justice) entered on or about September 3, 2002, granting defendant's motion for summary judgment and dismissing the complaint, reversed, on the law and in the exercise of discretion, without costs, plaintiffs' motion to renew granted and, upon renewal, defendant's motion for summary judgment denied and the complaint reinstated. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the order denying renewal.
The record reflects that several exhibits referenced in the affidavit opposing defendant's motion for summary judgment on the issue of "serious injury" (Insurance Law § 5102[d]) were omitted from the submission. Given plaintiffs' reasonable excuse of law office failure for this inadvertent omission and the absence of a showing of prejudice to defendant, plaintiffs' motion to renew based on submission of these exhibits should have been granted (Telep v Republic El. Corp., 267 AD2d 57, 58).
In her affidavit in opposition to the motion for summary judgment, plaintiff Cruz stated that on March 3, 2000, when her police patrol car was hit by a car driven by defendant, she lost consciousness after striking her head on the bar of the door. After regaining consciousness, she experienced severe dizziness and pains in her back, neck and legs, and vomiting. Thereafter, she consulted a neurologist for dizziness, severe headaches and continual nausea and vomiting. She wore a neck brace for more than two months and subsequently received physical therapy for several months for her neck and legs.
At her deposition taken on June 13, 2001, 15 months after the accident, Cruz testified that since the accident she could no longer exercise to the extent that she once did, and that she experienced frequent dizzy spells, lightheadedness, blurred vision, sometimes for as long as 30 minutes to an hour, and frequent headaches. She also stated that she missed substantial time at work and that her physical and emotional relationship with her husband had been compromised as a result of her injuries.
Dr. Landis Barnes, an osteopath, affirmed that Cruz was seen at his office on March 8, [*2]2000, complaining of severe head pain, inability to move or flex her neck, blurred vision and thoracic pain, and mild nausea. On orthopedic evaluation, "it was found that range of motion of the neck revealed severe restriction in flexion 30 degrees; extension 40 degrees; right rotation 20 degrees, left rotation 25 degrees, lateral flexion was 40 degrees right and 45 degrees left." A compression test was positive for pain, there was weakness in the patient's right grip, and Soto-Hall was positive for pain in the cervical spine.
Dr. Barnes stated that Cruz received physical therapy three times a week "with little improvement." When she was evaluated again on June 7, 2000, the findings included "marked restriction of the range of motion in her neck, i.e., flexion 30 degrees; extension 35 degrees; right rotation 30 degrees; left rotation 30 degrees with pain; right lateral flexion 45 [degrees] with mild pain; and left lateral flexion 40 degrees." She had a positive right arm drop test and Apley's scratch test; there was weakness of the right grip; and Jackson's compression elicited pain. According to Dr. Barnes, "All of the above findings were abnormal," and Cruz was diagnosed with cephalgia, cervical sprain/strain - flexion/extension injury, status post-concussion syndrome with cervical muscle spasm. Dr. Barnes stated that over the three-month period, the patient showed "little improvement."
Dr. Barnes examined Cruz on January 28, 2002, again finding "marked restriction in flexion, right and left rotation, and right and left lateral flexion, totally comparable with the earlier findings." He stated that she "is still totally symptomatic," and "still complains of lightheadedness, dizziness and mild nausea." Based on the length of time as well as the marked restriction of movement early on and as of January 28, 2002, Dr. Barnes opined that these injuries were permanent in nature and directly related to the March 6, 2000 accident.
Dr. Barnes's affirmation contains sufficient objective medical evidence to raise a triable issue as to whether Cruz sustained a serious injury, inasmuch as he conducted range-of-motion tests and determined that there were quantifiable limitations on her range of motion (see Ramos v Dekhtyar, 301 AD2d 428, 429, citing Toure v Avis Rent a Car Sys., 98 NY2d 345, 350). The motion court held that since Dr. Barnes was not Cruz's treating physician and his examination followed an almost 20-month "gap in treatment," his affirmation was "insufficient proof of the duration of the alleged impairments claimed by the plaintiff." To the contrary, Dr. Barnes affirmed that the findings he made in January 2002 were "totally comparable" with the findings made and expressed in numeric percentages by another physician connected with his practice in March 2000, five days after the accident, and again in June 2000. This constitutes evidence that the patient's impairments endured at least from March 2000 through January 2002. In any event, any so-called "treatment gap" in Cruz's medical history goes to the weight to be given a medical opinion and is thus a question for the jury (id.). It does not resolve or eliminate the disputed factual issue as to whether plaintiff did or did not sustain a serious injury within the meaning of the No-Fault Law (see Martin v Schwartz, 308 AD2d 318, 320).
All concur except Buckley, P.J. and Marlow, J. who dissent in part in a memorandum by Buckley, P.J. as follows:
BUCKLEY, P.J. (dissenting in part)
I would find that the grant of summary judgment dismissing the complaint was proper and should therefore be affirmed.
The affirmation of Dr. Barnes was insufficient to create a triable issue of fact on the issue of serious injury. The affirmation does not indicate that any objective tests were performed, or that he relied on anything other than plaintiff Cruz's subjective complaints, in reaching the vague [*3]conclusion that she had restricted range of motion in her neck "totally comparable" to findings made by other doctors 20 months earlier (see Franchini v Palmieri, 1 NY3d 536). The inadequacy of the affirmation is all the more notable in that MRIs, CTs and x-rays were all normal, and defendant cited the affirmation's shortcomings in her reply papers, yet plaintiffs failed to submit a clarifying affirmation on renewal. Even if plaintiffs should have been granted renewal based on their inadvertent omission of certain exhibits in opposing summary judgment, those exhibits were insufficient to raise a question of fact.
Jean C. Marc, Defendant, Yvette I. Sanchez, et al., Defendants-Respondents.
Law Offices of Michael A. Cervini, Jackson Heights (Robin
Mary Heaney of counsel), for appellant.
Curtis, Vasile, Devine & McElhenny, Merrick (Robert M. Smith
of counsel), for Yvette I. Sanchez, respondent.
Carman, Callahan & Ingham, Farmingdale (Peter F. Breheny of
counsel), for Budget Rent-A-Car and Trevor H. Bennett,
Judgment, Supreme Court, Bronx County (Bertram Katz, J.), entered November 12, 2002, upon an order, same court and Justice, entered October 10, 2000, granting the motion of defendant Jean C. Marc for summary judgment dismissing the complaint upon the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), affirmed, without costs.
Defendants met their initial burden of establishing that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102(d), and plaintiff's submissions failed to raise an issue of fact.
The affirmation of a non-treating physician based upon his first and only examination of plaintiff two years after the accident, in which the only abnormality noted was the subjective finding of "tenderness" of plaintiff's cervical spine, without supporting objective tests, was insufficient to create questions of fact let alone demonstrate that plaintiff suffered a serious injury. Nor does the undated affirmation of plaintiff's treating physician, Dr. Phang, state what objective tests, if any, were used to determine any restriction of motion. While referring to unsworn reports of MRI scans of plaintiff's cervical and lumbar spine conducted more than 10 months after the accident, he also fails to state that he actually reviewed the MRIs themselves, as opposed to merely reading the narrative reports (see Bandoian v Bernstein, 254 AD2d 205). Finally, Dr. Phang, in his initial evaluation of plaintiff six days after the accident, stated that there were "possible" injuries and plaintiff was to immediately start physical therapy sessions two or three times a week; however, there is no evidence of such treatment and his next and only other evaluation of plaintiff was almost 15 months later, as reflected in a report, dated July 17, 2000, [*2]which is nearly identical to the earlier report in language and substance.
All concur except Tom, J. who dissents in a memorandum as follows:
TOM, J. (dissenting)
This case arose from a 1998 multiple vehicle accident in which plaintiff allegedly sustained various injuries to his neck, back, shoulder and knee. Subsequently, plaintiff allegedly was confined to bed for several weeks, and confined to home for several months, fully prevented from returning to his job for several months and partially incapacitated for some time thereafter. His deposition testimony establishes the ongoing nature of certain of his physical limitations. A physical examination, x-rays and MRIs taken shortly after the accident support many of the claimed injuries, at least for threshold purposes, as do physician reports and a physician's affirmation indicating a permanent partial orthopedic disability, chronic inflammation and additional chronic back and neck injuries as a result of the accident. For purposes of Insurance Law § 5102(d), the physician's affirmation correlating plaintiff's back and neck pain some two years after the accident to quantified range of motion limitations found on the physical examination and bulging and herniated discs described in the MRI reports, with the physician's conclusion that the symptoms are permanent, adequately raises factual issues at this juncture (Gonzalez v Vasquez, 301 AD2d 438). In this case, the physician's first-hand observation regarding the plaintiff's restrictions in the range of motion (see Rice v Moses, 300 AD2d 213) and the defense's own reliance on the unsworn MRI reports (see Toledo v A.P.O.W. Auto Repair/Towing, 307 AD2d 233) cures the defect. Accordingly, I would reverse, deny the motion for summary judgment and reinstate the complaint.
Quincy Mutual Fire Insurance Company, appellant (and a third-party action). (Index No. 20397/02)
Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y.
(Thomas J. Donovan of counsel), for appellant.
Fred L. Abrams, New York, N.Y., for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the third-party defendant Valley Stream Discount Liquors, Inc., in an action entitled Rochester v Valley Stream Discount Liquors, Inc., pending in the Supreme Court, Nassau County, under Index No. 20396/02, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Davis, J.), dated June 18, 2003, which granted the plaintiff's motion for summary judgment declaring that the defendant is obligated to defend and indemnify the third-party defendant Valley Stream Discount Liquors, Inc., in the underlying action, and (2) an order of the same court entered August 14, 2003, which denied its motion, denominated as one for leave to reargue and renew, but which was, in effect, for leave to reargue the plaintiff's motion for summary judgment.
ORDERED that the appeal from the order entered August 14, 2003, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated June 18, 2003, is reversed, on the law, and the plaintiff's motion is denied; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff allegedly was injured on April 11, 2002, when she fainted and fell against the plate glass window of a store operated by the third-party defendant Valley Stream Discount Liquors, Inc. (hereinafter Valley Stream). The window shattered, cutting her hand and leg. On July 21, 2002, the plaintiff notified Valley Stream of her claim, which, in turn, notified the defendant, its insurer, of the claim. The defendant disclaimed coverage on the ground of late notice and notified the plaintiff of its disclaimer. The plaintiff then sent notice of the accident directly to the defendant. The defendant again informed the plaintiff that it had denied coverage to Valley Stream due to late notice.
The plaintiff subsequently commenced this action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify Valley Stream in the underlying personal injury action she commenced against Valley Stream. She moved for summary judgment contending that the defendant's disclaimer, based solely on Valley Stream's failure to provide timely notice of the accident, lacked specificity and was ineffective as to her since she independently provided notice to the defendant. The Supreme Court granted the motion.
When "the insured is the first to notify the carrier . . . any subsequent information provided by the injured party is superfluous for notice purposes and need not be addressed in the notice of disclaimer issued by the insurer" (Ringel v Blue Ridge Ins. Co., 293 AD2d 460, 462; see Massachusetts Bay Ins. Co. v Flood, 128 AD2d 683, 684). Where, as here, the insurer does not dispute receiving notice from its insured, "the only issue with respect to the injured party [is] whether the efforts of the injured party to facilitate the providing of proper notice were sufficient in light of the opportunities to do so afforded it under the circumstances" (Massachusetts Bay Ins. Co. v Flood, supra at 684). At this juncture, there is an issue of fact as to whether the plaintiff acted diligently in ascertaining the identity of Valley Stream's insurer and in notifying the defendant of the accident (see Denneny v Lizzie's Buggies, 306 AD2d 89). Consequently, the Supreme Court should have denied the plaintiff's motion for summary judgment.
The defendant's subsequent motion, denominated as one for leave to reargue and renew, primarily contended that the Supreme Court had overlooked controlling precedent in its prior order. Further, the motion was not based upon new evidence which was unavailable to the defendant at the time of the original motion, and the defendant did not provide any explanation as to why the additional document it relied upon could not have been submitted at that time. Under these circumstances, the Supreme Court properly treated the motion as one for reargument, the denial of which is not appealable (see Mount Sinai Hosp. v Progressive Cas. Ins. Co., 5 AD3d 745; Jandru Mats v Riteway AV Corp., 1 AD3d 565).
The defendant's contention that it had no obligation to issue a more specific disclaimer to the plaintiff (see Ringel v Blue Ridge Ins. Co., supra; Massachusetts Bay Ins. Co. v Flood, supra) was raised for the first time in its motion for leave to reargue. An argument raised for the first time in a motion for leave to reargue is not properly before this court when reargument was denied and the appeal from the order denying reargument is dismissed (see Ruddock v Boland Rentals, 5 AD3d 368). However, the legal argument raised by the defendant could not have been avoided if it had been raised in the Supreme Court, thus, it has been considered for the first time on appeal (see Matter of Cooke v City of Long Beach, 247 AD2d 538).
Mamadou Fofana, et al., respondents. (Index No. 32480/01)
Tracie A. Sundack & Associates, LLC, White Plains, N.Y. (Jeffrey
R. Pollack of counsel), for appellant.
Norman Volk & Associates, P.C., New York, N.Y. (Holly E.
Peck of counsel), for respondent
James P. Nunemaker, Jr., Uniondale, N.Y. (Kathleen E. Fioretti
of counsel), for respondents Henry A.
Grant and Terry T. Tatum.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Glover, J.), dated August 5, 2003, which granted the separate motions of the defendant Mamadou Fofana and the defendants Henry A. Grant and Terry T. Tatum 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 one bill of costs to the respondents appearing separately and filing separate briefs.
The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting the plaintiff's deposition testimony and the affirmations of their examining physicians (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Hodges v Jones, 238 AD2d 962). The affirmed report of the plaintiff's physician was insufficient to raise a triable issue of fact in opposition to the motions. [*2]
Neither the plaintiff nor her physician offered any explanation as to the gap of nearly 16 months between the conclusion of her medical treatments and his examination of the plaintiff for the first time in response to the defendants' motions (see Jimenez v Kambli, 272 AD2d 581, 582; Smith v Askew, 264 AD2d 834). Further, despite evidence in the plaintiff's medical history of treatment for lower back pain approximately five months before the instant accident, and despite his claim that he reviewed the plaintiff's medical records, the plaintiff's physician never mentioned the plaintiff's prior medical history, nor offered any other evidence as to the plaintiff's condition before the instant accident (see e.g. Dimenshteyn v Caruso, 262 AD2d 348).
In addition, it is clear from the report that the plaintiff's physician's findings of restrictions in motion were based solely upon the plaintiff's subjective complaints of pain (see Scheer v Koubek, 70 NY2d 678; Barrett v Howland, 202 AD2d 383, 384; LeBrun v Joyner, 195 AD2d 502; Coughlan v Donnelly, 172 AD2d 480).
Finally, the plaintiff's claim that she was unable to return to work for two months following the accident was not supported by any competent medical evidence (see Sainte-Aime v Ho, 274 AD2d 569, 570; Jackson v New York City Tr. Auth., 273 AD2d 200, 201; Greene v Miranda, 272 AD2d 441; Arshad v Gomer, 268 AD2d 450; Bennett v Reed, 263 AD2d 800; DiNunzio v County of Suffolk, 256 AD2d 498, 499).
Accordingly, the Supreme
Court properly granted the motions for summary judgment dismissing the
ALTMAN, J.P., GOLDSTEIN, SCHMIDT, COZIER and SKELOS, JJ., concur.
James Edward Pelzer
Clerk of the Court