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3/8/05              American Guarantee and Liability Ins. Co. v. CNA Reinsurance Co.
Appellate Division, First Department
Everyone’s Favorite Topic: The Breadth of the Blanket Additional Insured Endorsement
Linden Housing was the landlord of a building in which a tenant was allegedly shot by intruders. Linden had a security guard contract which required that the security guard company procure a liability policy naming Linden as an additional insured, which it did. The blanket additional insured endorsement covered Linden “only with respect to acts or omissions of the Named Insured in connection with the Named Insured’s security or investigative operations on behalf of said additional insured.” The tenant brought a personal injury action against Linden and its security guard company, alleging both negligent maintenance of the building’s lighting and door locks and negligent supervision and conduct of the security guards.  The Appellate Division held that the additional insured endorsement covering Linden under its security guard company’s policy unambiguously provided Linden with coverage only for injuries arising from security guard negligence. Linden had tendered its defense to the American Guarantee, the security guard’s company’s carrier.  American Guarantee accepted the tender with a reservation of rights reflecting the above understanding of its coverage obligation. Linden neither objected nor requested separate counsel for its defense in the underlying action. Plaintiff was allowed to recover back against the landlord and the landlord’s carrier for that negligence and defense costs attributed to the landlord (independent of the security guard company).  The “even of trial” was too late for the landlord to complain about a conflict of interest based on joint representation

3/8/05              In re The Hartford Insurance Company v. Martin
Appellate Division, First Department
Failure to File Timely Application to Stay UM Arbitration is Fatal to Carrier’s Defenses
Carrier failed to pay the proper filing fee when seeking to commence a special proceeding to stay a Uninsured Motorists arbitration and when it was finally filed, the 20-day limitation period had expired.  Commencement of a special proceeding requires the filing of the petition with the clerk, together with payment of the filing fee. Service of the petition without filing is a nullity .and petitioner’s failure to timely comply with the statutory requirements is fatal to the viability of this proceeding.

3/7/05              Edwards v. Allstate Insurance Company

Appellate Division, Second Department

Policy Exclusions are to be Strictly Construed and the Burden Rests with the Insurer

Allstate Insurance Company was obligated to provide excess coverage under the policy issued to the defendant Gazzola in connection with the underlying personal injury action.  Policy exclusions are to be strictly and narrowly construed and are not to be extended by interpretation or implication. In addition, the insurer bears the burden of establishing that the exclusion is applicable. Where, as here, the terms of an insurance policy are doubtful or uncertain as to their meaning, any ambiguity must be resolved in favor of the insured and against the insurer. 

 

3/7/05              Garces v. Yip

Appellate Division, Second Department

Threshold Motion Granted When Plaintiff’s Physician Failed to Account for Gap

Neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as the affirmations of the defendants’ examining physicians - an orthopedist, a neurologist, and a radiologist - established that the plaintiffs completely recovered from their injuries and did not sustain any disabilities, limitations, impairments, or restrictions.  On the other hand, Plaintiffs’ physician submitted an affirmation that failed to adequately account for the gap in time between the conclusion of their medical treatments and the date of his examination of the plaintiffs and improperly relied upon unsworn medical records and reports in formulating his opinion.

 

3/7/05          Howell v Reupke

Appellate Division, Second Department

Without a Causal Link to Disability or Restriction, Herniated Disc Just Not Enough

The mere existence of a bulging or herniated disc is not conclusive evidence of a serious injury in the absence of any objective evidence of a related disability or restriction.  Plaintiff’s submissions were insufficient to raise a triable issue of fact as neither of her physicians made a causal connection between the alleged herniations and the subject motor vehicle accident... In addition, the plaintiff failed to proffer any satisfactory explanation for the nearly four-year gap between the conclusion of her medical treatments and her re-examination by her treating physician.

 

3/7/05              Nembharv. Delatorre

Appellate Division, Second Department

Must Address the Allegations of the Plaintiff if Seeking Dismissal on Threshold Grounds

The affirmation of defendant’s examining orthopedist noted that the plaintiff had a “full” range of motion in her cervical and lumbar spine and shoulders without setting forth the objective test or tests performed supporting his conclusion  Although he noted that the plaintiff missed four months of work after the accident, none of the defendant’s experts addressed the major allegation contained in the plaintiff’s bill of particulars - plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident.  Therefore, the Appellate Division reverses the Lower Court grant of summary judgment to the defendant.

 


3/1/05              HRH Construction Interiors v. Royal Surplus Lines

Appellate Division, First Department

Specific Endorsement Read in Addition to Blanket Endorsement

Royal’s policy contained an endorsement, entitled “Additional Insured (Blanket - Primary),” and included as an insured any organization for which the subcontractor is obligated to provide insurance by virtue of a written contract, but only with respect to operations performed by the subcontractor, and providing that if such contract requires such insurance to be primary, then Royal’s policy “shall be primary as respects [the subcontractor’s] negligence . . . . Other insurance does not apply, but only with respect to coverage provided by this policy.” Also part of Royal’s policy was an endorsement that was labeled “Schedule” of “Additional Insureds” at the Scholastic project, and which lists 21 “Owners, Lessees or Contractors” at that project, by their proper names and roles, including HRH Construction Interiors, Inc.  .Royal argued that the “specific” endorsement overrides the “general” Blanket Additional Insured endorsement, and that because the specific endorsement did not contain language pertaining to “other insurance”, National and Royal are co-primary insurers equally responsible for HRH’s defense. The Court rejected this approach as a”torture[d]” interpretation of the Royal policy finding that the specific endorsement was meant to be read in addition to the Blanket endorsement, and not to replace it. 

 

3/1/05              Seda v. Khabrane

Appellate Division, First Department

Guess What? Herniated Discs Plus Range of Motion Restrictions Carries the Day

This Plaintiff (and most plaintiffs for that matter) is able to defeat a threshold motion under Insurance Law Section 5102(d) if affirmations and reports of plaintiffs’ doctors show the plaintiff “sustained a herniated disc and several bulging discs, and was experiencing significant limitations in the range of motion in her cervical and lumbosacral spine.”

 

 

2/28/05            V.M.V. Management v. Peerless Insurance

Appellate Division, Second Department

Insured’s Duty to Cooperate Satisfied by Substantial Compliance

Supreme Court properly denied that branch of Peerless motion based upon an alleged breach of the cooperation clause. The individual plaintiff provided two recorded interviews appeared for two examinations under oath at which he answered all of the questions posed by Peerless counsel, provided authorizations to release the plaintiffs’ records, and provided numerous exhibits and photos. The plaintiffs’ duty to cooperate with the insurer was satisfied by substantial compliance. 

 

2/28/05            Allstate Insurance Company v Esposito and General Star Ins.

Appellate Division, Second Department

Absent Proof of Other Insurance, UM Coverage Available

This is a CPLR article 75 petition by Allstate to permanently stay arbitration of a claim for underinsured motorist benefits.  It was uncontroverted that General Star was not notified of the accident until March 2003 and thus, it disclaimed coverage due to untimely notice. Accordingly, Esposito demanded underinsured motorist benefits pursuant to the uninsured/underinsured motorist endorsement of the Allstate policy. Allstate bore the burden of coming forward with evidence establishing that the alleged offending vehicle was insured by another insurance carrier at the time of the accident. In the absence of any proof undermining the validity of General Star’s disclaimer under its excess policy, General Star’s disclaimer was effective. Thus, Allstate is obligated to provide underinsurance coverage pursuant to the terms of its policy.

 



 

Across Borders

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

 

 


3/3/05              Twin City Fire Insurance v. Adkins

Sixth Circuit Court of Appeals

Insurance Policy Naming Corporation as Insured for UM/UIM Coverage Covers Loss Sustained by Employee of Corporation Only if Loss Occurs Within Course and Scope of Employment and Does Not Extend Coverage to Family Members
Michele Adkins was involved in an automobile accident in 1983 that seriously injured her and her unborn daughter. At the time of the accident, Michele’s husband was employed by a subsidiary of the American Electric Power Company, which had three insurance policies then in force that provided for uninsured and underinsured motorist coverage. The Adkinses brought this action in June 2001 seeking coverage under these policies. The primary policy, obtained through the Insurance Company of North America, provided for UM/UIM motorist coverage in the amount of $25,000. American Electric was also covered by two umbrella insurance policies. The first, with Twin City Fire Insurance Company, provided for automobile liability coverage with a limit of $5 million in excess of the INA policy. Another, from First State Insurance Company, also provided for additional coverage in an amount not specified in the record. A 2003 Ohio Supreme Court case held the court held that “a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope of employment . . . [and such a policy] does not extend insurance coverage to a family member of an employee of the corporation . . . .” On the basis of this holding, the Distict Court entered summary judgment in favor of the insurance companies. The Court of Appeals affirmed, rejecting plaintiffs’ argument that the Ohio decision was void ab initio due to the state court’s lack of subject matter jurisdiction. The Court of Appeals reasoned that subsequent Ohio Supreme Court and Ohio Courts of Appeals decisions have applied the reasoning and holding of this 2003 case, thus clearly establishing that the recovery sought by plaintiffs is unavailable under Ohio law.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C.)

 

3/3/05              Employers Insurance of Wausau v. Titan International
Seventh Circuit Court of Appeals

Insured Not Entitled to Keep Check Received for Premium Adjustments Which They Received As A Result of Insurer’s Miscalculation of Losses Experienced During Term of Policy
Wausau had issued a number of workers’ compensation, auto liability, and general liability policies covering the defendants. The policies contained provisions for adjusting the premiums retrospectively if the loss experience differed substantially from what the parties had expected when the policies were negotiated, which provisions are common. Because of a computer error in calculating the retro adjustment for 2000, Wausau overlooked losses that it had incurred under the policies and as a result mistakenly sent the defendants a check for $239,132. When it discovered the mistake it demanded the return of the money plus $3,987 in retrospectively adjusted premiums due from the defendants. The defendants refused both demands, and Wausau brought this suit for the sum of the two amounts, $243,119. The defendants do not doubt that Wausau made a computational error but for which it would have charged them the additional $3,987 in premiums rather than sending them the huge refund check. But they say that Wausau failed to prove that the “correct” amount was actually compliant with the insurance policies, and they insist that Wausau’s burden of proving that their refusal to honor its retro demands required Wausau to prove that it used the correct “state factors” in calculating the amount that the defendants owed it. The defendants also argue that it was a careless mistake and therefore restitution should be denied. The Court of Appeals rejected both arguments, reasoning that the first misstated the burden of proof in a breach of contract claim, and that the second is not a proper statement of the law. The law, the Court stated, does not permit a person to keep money that he has received by mistake, just because the mistake is careless. The Court therefore upheld the District Court’s grant of summary judgment in favor of Wausau.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C.)


3/1/05              Barclays Investments v. St. Croix Estates

Third Circuit Court of Appeals

Absent Agreement to the Contrary, Mortgage Will Not Secure Future Advances
This dispute concerned whether a mortgage on a property located on St. Croix in the Virgin Islands secured a note made after the mortgage was satisfied. The question before the Court was whether the district court properly classified the mortgage as a future advance mortgage. The Court held that there was no expression in the mortgage from that it would secure future advances, and thus the mortgage was not enforceable. While the Court noted that it is true that a written expression that a mortgage secures future advances is not required in the Virgin Islands if the parties have agreed that it will do so, there was no evidence in the record that the parties had agreed at the time of the execution of the mortgage, either orally or in writing, that the mortgage would secure future advances.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C


2/28/05            Rodriguez v. Romaro

South
Carolina Supreme Court

Carrier Issuing Assigned Risk Policy Not Responsible for Workers’ Compensation Claim When Previous Policy Still In Effect
While installing a new roof on a large commercial building, Rodriguez slipped and fell through a skylight opening, suffering numerous injuries. It was undisputed that Rodriguez is entitled to workers’ compensation coverage, and the only question the court considered was which of two insurance carriers was responsible. Rodriguez’ employer, Romaro, initially purchased workers’ compensation insurance from INSCORP, but the policy was cancelled for non-payment. Subsequently, Romaro applied for a new policy and began paying premiums. INSCORP became concerned that Romaro was leasing his employees and advised Romaro to seek coverage through an “assigned risk” plan. Instead of canceling his policy, however, INSCORP issued Romaro a new policy and charged him premiums. Meanwhile, Romaro applied for an assigned risk policy through Capital, which Capital issued three days before Rodriguez’ injury. The Supreme Court held that under South Carolina’s Assigned Risk Plan and Procedures, it was patent the assigned risk policy issued by Capital either a) never became effective because INSCORP’s policy was not cancelled on time, b) terminated upon the effective date of INSCORP’s policy, or c) was not effective because Romaro, having misrepresented his status, was ineligible for assigned risk coverage. The Court further held that there was no dual coverage, and thus INSCORP was the only carrier responsible for the claim.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C.)

 

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HRH Construction Interiors v. Royal Surplus Lines 






Traub Eglin Lieberman Straus, LLP, Hawthorne (Robert M.
Leff of counsel), for appellants.
Harrington, Ocko & Monk, LLP, White Plains (I. Paul
Howansky of counsel), for respondents.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered February 4, 2004, which, upon the parties’ motions for summary judgment, declared that defendant Royal Surplus Lines Insurance Company (Royal) is obligated to defend plaintiff HRH Construction Interiors, Inc. (HRH) in the underlying action, and that Royal is obligated to reimburse HRH and plaintiff National Union Fire Insurance Company (National) for all legal fees incurred in the defense of the underlying action from December 30, 1999 to the present, unanimously modified, on the law, to delete “December 30, 1999” and substitute therefore “November 22, 2000,” and otherwise affirmed, without costs.

The underlying action arises from a worker’s fatal fall at a construction site referred to as the Scholastic project. HRH was the project’s general contractor; the worker was employed by a subcontractor; National is HRH’s general liability insurer; and Royal is the subcontractor’s general liability insurer. The contract between HRH and the subcontractor required the subcontractor to indemnify and hold HRH harmless from all losses arising out the subcontractor’s work, and as part of that obligation, also required the subcontractor to procure primary insurance naming, inter alia, HRH as an additional insured. National’s policy with HRH and Royal’s policy procured by the subcontractor contain identical “Other Insurance” clauses to the effect that the policy is primary, unless there is other insurance that is also primary, in which event the insurer would share the loss equally with all other insurance permitting contribution by equal shares, up to the limits of the policy. Royal’s policy with the subcontractor also contains an endorsement, entitled “Additional Insured (Blanket - Primary),” including as an insured any organization for which the subcontractor is obligated to provide insurance by virtue of a written contract, but only with respect to operations performed by the subcontractor, and providing that if such contract requires such insurance to be primary, then Royal’s policy “shall be primary as respects [the subcontractor’s] negligence . . . . Other insurance does not apply, but only with respect to coverage provided by this policy.” Also part of Royal’s policy is an endorsement that is labeled a “Schedule” of “Additional Insureds” at the Scholastic project, and which lists 21 “Owners, Lessees or Contractors” at that project, by their proper names and roles, the first name [*2]listed being “HRH Construction Interiors, Inc. (CM).”

Royal argues that the “specific” Scholastic endorsement overrides the “general” Blanket Additional Insured endorsement, and that because the Scholastic endorsement does not contain any language pertaining to other insurance, National and Royal are co-primary insurers equally responsible for HRH’s defense. The motion court aptly rejected this argument as a “torture[d]” interpretation of the Royal policy. Clearly, the Scholastic endorsement was meant to be read in addition to the Blanket endorsement, and not to replace it. We would add that Royal adduces no extrinsic evidence in support of its interpretation.

Since Royal’s duty to defend is triggered by a “suit” against an insured, such duty arose upon the commencement of the underlying action against HRH, not upon National’s notice to Royal of the accident and initial tender of the defense, and we modify accordingly.

We have considered Royal’s other arguments and find them unavailing.

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

ENTERED: MARCH 1, 2005

CLERK

 

 

 

 

 

 

 Seda v. Khabrane






The Sullivan Law Firm, Garden City (Timothy M. Sullivan of
counsel), for appellants.
Joseph T. Mullen, Jr. & Associates, New York (Mitchell F.
Senft of counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about March 15, 2004, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants sought summary dismissal of the complaint on the ground that plaintiff Celia Seda had not sustained a “serious injury” within the meaning of Insurance Law § 5102(d). An issue of fact on this point was raised by the affirmations and reports of plaintiffs’ doctors and the MRI, showing the injured plaintiff had sustained a herniated disc and several bulging discs, and was experiencing significant limitations in the range of motion in her cervical and lumbosacral spine (see Gonzalez v Vasquez, 301 AD2d 438 [2003]; see also Cespedes v McNamee, 308 AD2d 409 [2003]).

We have considered defendants’ remaining contentions and find them unavailing.

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

ENTERED: MARCH 1, 2005

CLERK


V.M.V. Management v. Peerless Insurance






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

In an action, inter alia, to recover damages for breach of contract, the defendant Peerless Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated November 12, 2003, as denied that branch of its motion which was for summary judgment dismissing the complaint based on the plaintiffs’ failure to comply with the cooperation clause of the subject policy.

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

The appellant moved, inter alia, for summary judgment dismissing the complaint on the ground that the plaintiffs breached the cooperation clause of the subject insurance policy when they failed to provide documents and information regarding their financial condition at the time of the loss. The Supreme Court properly denied that branch of the appellant’s motion which was based upon an alleged breach of the cooperation clause. The individual plaintiff provided two recorded interviews, appeared for two examinations under oath at which he answered all of the questions posed by the appellant’s attorney, provided authorizations to release the plaintiffs’ records, and provided numerous exhibits and photos. The plaintiffs’ duty to cooperate with the insurer was satisfied by substantial compliance (see Avarello v State Farm Fire and Cas. Co., 208 AD2d 483; DePicciotto Corp. v Wallis, 177 AD2d 327; High Fashions Hair Cutters v Commercial Union Ins. [*2]Co., 145 AD2d 465). Furthermore, the appellant failed to show that certain documents and information regarding the financial conditions of the plaintiffs at the time of the loss which were not produced were material and relevant to the investigation or settlement of this claim (see McLaughlin v State Farm Fire and Cas. Co., 255 AD2d 298; cf. Maurice v Allstate Ins. Co., 173 AD2d 793).
H. MILLER, J.P., S. MILLER, GOLDSTEIN, MASTRO and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Allstate Insurance Company v Esposito






Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant.
Robert Marchese, Brooklyn, N.Y., for respondent-respondent.
Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y.
(Darrell John of counsel), for proposed
additional respondent-respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, Allstate Insurance Company appeals from an order of the Supreme Court, Kings County (Bernstein, J.H.O.), dated July 14, 2004, which, after a hearing, denied the petition.

ORDERED that the order is affirmed, with costs.

On May 4, 1999, the respondent Ronald Esposito allegedly sustained a serious injury when the car he was driving, which was owned by Maria Badalamenti, was struck in the rear by an automobile driven by the proposed additional respondent Vladimir Mayster. Badalamenti’s car was insured under a policy of automobile insurance issued by the petitioner, Allstate Insurance Company (hereinafter Allstate). Mayster had primary insurance coverage from the proposed additional respondent Fidelity and Guaranty Insurance Company which settled with Esposito for the policy [*2]limits. Mayster also had excess coverage under a policy issued by the proposed additional respondent General Star Indemnity Company (hereinafter General Star). It was uncontroverted that General Star was not notified of the accident until March 2003 and thus, it disclaimed coverage due to untimely notice. Accordingly, Esposito demanded underinsured motorist benefits pursuant to the uninsured/underinsured motorist endorsement of the Allstate policy.

As the party seeking to permanently stay arbitration pursuant to the uninsured/underinsured motorist endorsement of its insured’s policy, Allstate bore the burden of coming forward with evidence establishing that the alleged offending vehicle was insured by another insurance carrier at the time of the accident (see Matter of Government Empls. Ins. Co. v Williams-Staley, 288 AD2d 471; Matter of New York Cent. Mut. Fire Ins. Co. v Marchesi, 238 AD2d 135). Allstate failed to satisfy its burden (see Matter of Nationwide Mut. Ins. Co. [Hodge-Wausau Underwriters Ins. Co.], 203 AD2d 805). Moreover, in the absence of any proof undermining the validity of General Star’s disclaimer under its excess policy, General Star’s disclaimer was effective. Thus, Allstate is obligated to provide underinsurance coverage pursuant to the terms of its policy (see Matter of Government Empls. Ins. Co. v Annamanthadoo, 302 AD2d 460). Accordingly, the Supreme Court properly denied Allstate’s petition to permanently stay Esposito’s claim for underinsured motorist benefits.

Allstate’s remaining contentions are without merit.
H. MILLER, J.P., COZIER, S. MILLER and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

In re The Hartford Insurance Company v. Martin

Order (denominated order and judgment), Supreme Court, New York County (Paula J. Omansky, J.), entered June 24, 2004, which, upon granting respondent Martin’s motion for reargument, adhered to prior order, same court and Justice, entered February 20, 2004, staying arbitration, directing a trial on the framed issue of insurance coverage and granting petitioner’s motion to add additional respondents Highland Insurance and Medina, unanimously reversed, on the law, without costs, the petition denied, the stay vacated and this proceeding dismissed.

In July 2001, the 1990 Geo Prism owned and operated by respondent Martin was involved in a collision with a 1991 Lincoln owned by respondent Medina and operated by nonparty Tejada. Martin submitted a claim for underinsured motorist coverage under his policy with petitioner. In September 2002, petitioner informed Martin that because it had determined that the coverage afforded by Highland Insurance to Medina exceeded the benefits payable under its underinsured motorist endorsement, his claim was denied.

Martin served petitioner with a demand for arbitration on May 16, 2003. With his application to stay arbitration, petitioner submitted a check for the filing fee in the amount of $175 “on or about May 29, 2003.” However, as of July 1, 2002, the fee had been increased to $185 (CPLR 8018[a], as amended L 2002, ch 83), and petitioner’s application was rejected by the Clerk. It was subsequently resubmitted and accepted for filing on June 10, 2003.

CPLR 7503(c) provides, “An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be . . . precluded.” The 20-day time limit is construed as a period of limitation, and the courts have no discretion to waive or extend the statutory period (Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182, 185-186 [1974]). Where the application to stay is untimely, courts have no authority to determine threshold issues of arbitrability or the scope of an arbitrator’s jurisdiction (id. at 186). An exception is recognized where no agreement to arbitrate exists (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264 [1982]); however, the parties do not contest the existence [*2]of an arbitration provision in the subject insurance policy.

Commencement of a special proceeding requires the filing of the petition with the clerk, together with payment of the filing fee (Matter of Allstate Indem. Co. v Martinez, 4 AD3d 422 [2004]). Service of the petition without filing is a nullity (Matter of Parkinson v Leahy, 277 AD2d 810, 811 [2000]), and petitioner’s failure to timely comply with the statutory requirements is fatal to the viability of this proceeding (Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082 [1996]). Finally, petitioner’s claim that Martin’s demand for arbitration was frivolous and “prompted by the failure of negotiation for an amicable settlement with the liability carrier for the offending vehicle” is insufficient to preclude arbitration on public policy grounds (see Matter of Sprinzen [Nomberg], 46 NY2d 623, 631-632 [1979]; see also Matter of Wertlieb [Greystone Partnerships Group], 165 AD2d 644, 646-647 [1991]).

American Guarantee and Liability Insurance Company v. CNA Reinsurance Company



 

Order, Supreme Court, New York County (Herman Cahn, J.), entered April 22, 2004, which denied the parties’ respective motions for summary judgment, unanimously modified, on the law, to the extent of granting plaintiff’s motion for summary judgment, declaring that plaintiff is entitled to reimbursement for Linden Plaza Housing Co., Inc.’s shares of the amount paid in settlement of the underlying personal injury action and the defense costs, and otherwise affirmed, with costs in favor of plaintiff payable by CNA Reinsurance Company, and the matter remanded for further proceedings.

Defendant Linden Housing Plaza was the landlord of a building in which a tenant was allegedly shot by intruders. Linden had a security guard contract which required that the security guard company procure a liability policy naming Linden as an additional insured, which it did. The blanket additional insured endorsement covered Linden “only with respect to acts or omissions of the Named Insured in connection with the Named Insured’s security or investigative operations on behalf of said additional insured.” The tenant brought a personal injury action against Linden and its security guard company, alleging both negligent maintenance of the building’s lighting and door locks and negligent supervision and conduct of the security guards. Contrary to the understanding of the motion court, we find that, under well-settled canons of interpretation (see Greenfield v Phillies Records, Inc., 98 NY2d 562, 569 [2002]; Greater New York Mut. Ins. Co. v Mut. Marine Office, Inc., 3 AD3d 44, 50 [2003]), the additional insured endorsement covering Linden under its security guard company’s policy unambiguously provided Linden with coverage only for injuries arising from security guard negligence. That one of the parties may have interpreted the provision differently does not make it ambiguous (see Atlantic Mut. Ins. Co. v Terk Tech. Corp., 309 AD2d 22, 28 [2003]). Notably, when Linden tendered the defense of the personal injury action, plaintiff accepted with a reservation of rights reflecting the above understanding of its coverage obligation, and Linden neither objected nor requested separate counsel for its defense in the underlying action. Defendants’ claim that plaintiff should be estopped from seeking reimbursement of the amount of the personal injury post-verdict settlement and defense costs attributable to the finding of liability against Linden is belied by the [*2]facts. While the issue of the possible conflict of interest based on the joint representation that plaintiff had obtained for Linden and the security guard company came to a head on the eve of trial in May 2002, defendants had long been on notice, based on communications in March 1999 and May 2000 and, undoubtedly, during the course of discovery, that there would be joint representation.

We have considered the parties’ other contentions for affirmative relief and find them unavailing.

 

 

 Edwards v. Allstate Insurance Company






Kilmartin & Kilmartin, Yonkers, N.Y. (Paul G. Kilmartin of
counsel), for appellants.
O’Connor, McGuinness, Conte, Doyle & Oleson, White
Plains, N.Y. (Shannon R. Becker of
counsel), for respondents.

In an action for a judgment declaring that the defendant Allstate Insurance Company is obligated to provide excess coverage under a policy of insurance issued to the defendant John Gazzola in connection with an underlying personal injury action, the plaintiffs Natasha Edwards and Marcus Williams appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), dated December 23, 2003, as granted the defendants’ motion for summary judgment and denied their cross motion for summary judgment declaring that the defendant Allstate Insurance Company is obligated to provide excess coverage under the policy of insurance issued to the defendant John Gazzola in connection with the underlying personal injury action, and (2) from a judgment of the same court entered January 14, 2004, upon the order.

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

ORDERED that the judgment is reversed, on the law, the motion is denied, the cross motion is granted, the order dated December 23, 2003, is modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the defendant Allstate Insurance Company is obligated to provide excess coverage under the policy of [*2]insurance issued to the defendant John Gazzola in connection with the underlying personal injury action; and it is further

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

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

Policy exclusions are to be strictly and narrowly construed and are not to be extended by interpretation or implication (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). In addition, the insurer bears the burden of establishing that the exclusion is applicable (id.). Where, as here, the terms of an insurance policy are doubtful or uncertain as to their meaning, any ambiguity must be resolved in favor of the insured and against the insurer (see Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 671). Accordingly, the defendants failed to establish their prima facie entitlement to summary judgment. Moreover, since there exists no issue of fact regarding the applicability of the two policy exclusions, the Supreme Court should have granted the appellants’ cross motion for summary judgment.
H. MILLER, J.P., COZIER, S. MILLER and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Garces v. Yip

Longo & D’Apice, Brooklyn, N.Y. (Mark A. Longo, Marina
Dushas, and Deborah Ann Kramer of counsel), for appellants.
Ofshtein & Ross, P.C., Brooklyn, N.Y. (Stuart K. Gechlick of
counsel), for respondents.

In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated February 19, 2004, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Carlos C. Garces on the ground that that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) from an order of the same court dated May 25, 2004, which denied their motion for leave to reargue that branch of their motion and which granted the plaintiffs’ cross motion for leave to reargue that branch of their prior motion which was for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Nadejda I. Garces on the ground that that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which was granted by the order dated February 19, 2004, and, upon reargument, denied that branch of their motion.

ORDERED that the appeal from so much of the order dated May 25, 2004, as denied their motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated February 19, 2004, is reversed insofar as appealed from, on the law, by deleting the provision denying that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Carlos [*2]C. Garces, and substituting therefor a provision granting that branch of the motion; and it is further,

ORDERED that the order dated May 25, 2004, is reversed insofar as reviewed, on the law, and the plaintiffs’ cross motion for leave to reargue is denied; and it is further,

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

The defendants made a prima facie showing on their original motion for summary judgment that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmations of the defendants’ examining physicians - an orthopedist, a neurologist, and a radiologist - established that the plaintiffs completely recovered from their injuries and did not sustain any disabilities, limitations, impairments, or restrictions. The affirmations of the plaintiffs’ physician submitted in opposition to the motion failed to adequately account for the gap in time between the conclusion of their medical treatments and the date of his examination of the plaintiffs (see Jimenez v Kambli, 272 AD2d 581; Smith v Askew, 264 AD2d 834). Moreover, it is readily apparent that the plaintiffs’ physician improperly relied upon numerous unsworn medical records and reports in formulating his opinion (see Friedman v U-Haul Truck Rental, 216 AD2d 266).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment in its entirety in the first instance.
ADAMS, J.P., COZIER, RITTER and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Howell v Reupke






Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for appellant.
Malapero & Prisco, LLP, New York, N.Y. (Joseph J. Prisco
of counsel), for respondent Edward
P. Reupke.
James P. Nunemaker, Jr. & Associates, Uniondale, N.Y.
(Kathleen E. Fioretti of counsel), for
respondent Robert J. Kaiser.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated February 17, 2004, which granted the respective motions of the defendants Edward P. Reupke and Robert J. Kaiser for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, upon searching the record, awarded summary judgment to the defendant Rafael A. Mascol, dismissing the complaint insofar as asserted against him.

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

Contrary to the plaintiff’s contentions, the respondents 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 motor vehicle accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345; Gaddy v Eyler,79 NY2d 955). The mere existence of a bulging or herniated disc is not conclusive evidence of a serious injury in the absence of any objective evidence of a related disability or restriction (see Guzman v Michael Mgt.,266 AD2d 508, 509), particularly where, as here, a [*2]defendant submits proof that the plaintiff had a full range of motion in his or her cervical and lumbar spines, had no ongoing orthopedic or neurologic disabilities, and was capable of fully performing her normal daily work and living activities (see Duldulao v City of New York,284 AD2d 296, 297; Foley v Karvelis,276 AD2d 666, 667).

Moreover, the plaintiff’s submissions were insufficient to raise a triable issue of fact as neither of her physicians made a causal connection between the alleged herniations and the subject motor vehicle accident (see Gilroy v Duncombe,274 AD2d 548). In addition, the plaintiff failed to proffer any satisfactory explanation for the nearly four-year gap between the conclusion of her medical treatments and her re-examination by her treating physician (see Jimenez v Kambli,272 AD2d 581, 582; Smith v Askew,264 AD2d 834), and there is nothing in the report of her treating physician to indicate that he took into account the fact that she had injured her neck and back in prior and subsequent accidents (see e.g. Dimenshteyn v Caruso,262 AD2d 348).

Finally, the plaintiff did not submit any competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days after the accident as a result of the accident (see Sainte-Aime v Ho,274 AD2d 569, 570; Jackson v New York City Tr. Auth.,273 AD2d 200; 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 respective motions for summary judgment dismissing the complaint were properly granted, and, upon searching the record, the Supreme Court properly awarded summary judgment to the defendant Rafael A. Mascol, dismissing the complaint insofar as asserted against him.
ADAMS, J.P., COZIER, RITTER and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Nembharv. Delatorre



John P. Rudden, New York, N.Y., for appellant.
James G. Bilello & Associates, Westbury, N.Y. (Patricia
McDonagh of counsel), for
respondents.
Vlock & Associates, P.C., New York, N.Y. (Steven P.
Giordano of counsel), for defendant
Thomasa Delatorre.

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Kramer, J.), dated January 14, 2004, which granted the motion of the defendants Micheline Prosper and Guy Prosper 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 (2), as limited by her brief, from so much of an order of the same court dated April 14, 2004, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated January 14, 2004, is dismissed, as that order was superseded by the order dated April 14, 2004, made upon reargument; and it is further,

ORDERED that the order dated April 14, 2004, is reversed insofar as appealed from, on the law, with costs, upon reargument, the order dated January 14, 2004, is vacated, the motion for summary judgment is denied, and the complaint is reinstated insofar as asserted against the respondents. [*2]

The respondents failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmation of the respondents’ examining orthopedist merely noted that the plaintiff had a “full” range of motion in her cervical and lumbar spine and shoulders without setting forth the objective test or tests performed supporting his conclusion (see Black v Robinson, 305 AD2d 438; see also Zavala v DeSantis, 1 AD3d 354; Gamberg v Romeo, 289 AD2d 525). Moreover, although the respondents’ orthopedist recorded that the plaintiff missed four months of work after the accident, neither he nor the respondents’ other expert addressed the major allegation contained in the plaintiff’s bill of particulars, that the plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see Peplow v Murat, 304 AD2d 633; Frier v Teague, 288 AD2d 177, 178). Since the respondents failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the plaintiff’s papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538; see also Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437).
PRUDENTI, P.J., SCHMIDT, SANTUCCI, LUCIANO and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court