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4/22/05            Knoll v. Seafood Express

Appellate Division, First Department

Evidence Did Not Indicate Symptoms from Brain Hemorrhage Met “Serious Injury” Threshold

Much like the series of cases that hold that evidence of a cervical herniation is not, by itself, sufficient to find a serious injury under § 5102(d), the majority points out that the plaintiff suffered from "relative numbness" on one side of his body, evidenced by "diminished sensation to light touch and pinprick," "double vision on far left lateral gaze," occasional dizzy spells and a gait imbalance. This is found insufficient to rise to the level to be considered “significant” within the meaning of Insurance Law § 5102(d).

 

In a strong dissenting opinion, Judge Mazzarelli argues that the plaintiff's injuries were the direct result of the August 18, 2000 car accident that caused bleeding in plaintiff's brain. Further, plaintiff's doctors gave “ ‘qualitative’ descriptions of limitations of the "normal function, purpose and use" of a number of plaintiff's body parts resulting from brain damage including  vision, numbness, and equilibrium problems that prevent plaintiff from walking properly. The dissent concludes “(c) ertainly, to the extent that the parties' medical experts may have expressed disagreement about the severity of plaintiff's present condition, the diverse opinions are sufficient to raise issues that are for the jury, not the court, to resolve.”

 

 

4/21/05            Progressive Northern Insurance Company v. Rafferty

Appellate Division, Third Department

Subjective Intent of the Insured Does Not Prevent Finding of Intentional Act

The insured was involved in a fight with Carman and in an attempt to extricate himself from the situation, got into his car.  Carman placed himself between the garage door and the car while his friend blocked Rafferty's car from the rear. Rafferty accelerated and drove Carman into the garage door, injuring his leg.  The Insurer disclaimed under the policy's exclusion for intentional acts.  Rafferty and Carman appeal contending that Rafferty only "lightly" stepped on the accelerator intending only to scare Carman, not injure him.

The Court holds that Carman's injuries were inherent in the act of placing a car in forward motion when but two feet of space existed between the car, a pedestrian and an immovable object, clearly invoking the intentional act exclusion of Rafferty's policy. For similar reasons, Carman's injuries were not caused by an "accident" and, thus, he was not eligible for no-fault benefits under the policy.  In these type of cases, "the theoretical possibility that the insured lacked the subjective intent to cause the harm” does not preclude a finding that, for the purposes of the policy's intentional act exclusion, such injuries are as a matter of law "intentionally caused".

4/21/05            Ayres Memorial Animal Shelter, Inc. v. Montgomery County SPCA

Appellate Division, Third Department

Insurer’s Delay in Obtaining Defense Counsel Reasonable Excuse for Failure to Answer

Plaintiff sought reimbursement from defendant for the cost of boarding domestic animals and obtained a default judgment pursuant to CPLR 3215. Less than one month later, defendant moved by order to show cause to open the default judgment and serve an answer to the complaint. Supreme Court granted that relief and the Appellate Division affirms finding, among other things, that the Supreme Court did not abuse its discretion in permitting defendant to serve a late answer. Defendant established that the summons and complaint was promptly provided to its insurance agent upon receipt and defendant's default in answering was attributable to the insurance company's failure to properly obtain counsel. This was a reasonable excuse for the delay and plaintiff failed to show either that the default was willful or that it was prejudiced by the relatively short delay.

 

4/18/05            Westchester Medical Center v.  American Transit Insurance Company

Appellate Division, Second Department

Failure to Verify the Claim Precludes Insurer from Raising Defense of Incorrect Billing

Insurer failed to pay or deny the claim for treatment within 30 days after proof of such claim was submitted and did not seek any further verification of this claim. Instead, insurer tendered a belated partial payment of the claim and alleged the medical provider billed under the wrong "DRG" code.  The Court finds that since the insurer never sought any verification of the claim, it is precluded from raising this statutory exclusion defense based upon its failure to issue a denial of claim form within 30 days of its receipt of the claim as required by 11 NYCRR 65.15(g)(3).

 

4/18/05            Cortez v. Countrywide Insurance Co.

Appellate Division, Second Department

Decision to Arbitrate No-Fault Waives Right to Litigate Subsequent Benefit Disputes

Several years before he commenced the instant action, plaintiff, who was involved in an automobile accident, commenced an arbitration proceeding against Countrywide to recover no-fault benefits he alleged had been improperly denied. The Court holds that by electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits to which he was allegedly entitled as a result of that accident.  Therefore, the plaintiff was precluded from maintaining this action.

 

4/18/05            Batista v.  Olivo

Appellate Division, Second Department

To Resist a Serious Injury Threshold Motion, the Plaintiff Must Explain Gap in Treatment

After the defendant put forward a prima facie case for dismissal pursuant to Insurance Law § 5102(d), it was up to the plaintiff.  Unfortunately, the plaintiffs’ examining physician offered no explanation or discussion concerning the approximately 2½ year gap between the conclusion of their physical therapy treatments and the date of the examination.  Furthermore, neither did plaintiffs submitted any medical evidence to raise a triable issue of fact as to their inability to perform substantially all of their daily activities for not less than 90 of the first 180 days subsequent to the accident.

 

4/14/05            Turner-Brewster v. Arce
Appellate Division, Third Department

Court Accepts Explanation for Gap in Treatment and Denies Serious Injury Summary Judgment Motion
Chiropractor’s earlier statement that conservative treatment was in order for patient who reached “maximum medical improvement” sufficient to explain away years of non-treatment.

 

4/14/05            Hayes v. Johnston

Appellate Division, Third Department

No Serious Injury In Light of Strong Evidence of Preexisting Conditions

46-year-old logger claimed back injury and accident induced stroke.  Defendant’s doctor opined that plaintiff's degenerative disc disease and mild disc bulging had preexisted the accident, and he found no objective evidence that the accident caused or aggravated these conditions.  Plaintiff also claimed that the accident caused him to suffer a stroke approximately three months later and this stroke constitutes a qualifying serious injury, but defendant’s doctor found no acute stroke occurred after the accident.  The reports of plaintiffs’ doctors did not find that the conditions of his spine were caused by the accident nor did plaintiff's physicians identify the diagnostic tests performed or provide other objective medical basis for their findings with regard to his spine.  Furthermore, plaintiffs’ doctors did not find that the stroke caused a permanent or significant impairment of a body part, function or system. Plaintiff conceded that the stroke symptoms didn’t persist, but took the position that taking anticoagulants and give up his work as a logger due to the risk of uncontrollable bleeding or abstain from anticoagulants and run the risk of a future stoke is itself a physical limitation constituting a serious injury.

4/12/05            Petinrin v. Levering
Appellate Division, First Department
On the Other Hand, Failure of Chiropractor to Contemporaneously Document and Quantity Disability Leads to Dismissal
Plaintiffs' submissions with respect to their claimed cervical and lumbar spine limitations suffer from the lack of any contemporaneous qualitative evidence of such restriction. Although each plaintiff was examined shortly after the accident and found to have limitations, the chiropractor’s initial reports fail to quantify any such limitations. He only purports to quantify plaintiffs' limitations in a reevaluation some 2½ years later, without any explanation for the time gap.

4/11/05            In the Matter of Allstate Insurance Company v.Aziz
Appellate Division, Second Department
While Insurer Had Notice of Accident, It Had No Notice of Uninsured Motorist Involvement; Arbitration Permanently Stayed
Even though insurer had notice of accident, it had no reason to believe UM claim was to be filed. Here, neither the insured's claim letter, applications for neither no-fault benefits, nor "Notice of Intention to Make Claim" forms provided Allstate with any notice that a hit-and-run vehicle had been involved in the accident. Under these circumstances, the insured’s failed to provide notice within 90 days as required by the policy and did not provide Allstate with adequate notice of their claim. Thus, the petition for a permanent stay of arbitration should have been granted.

4/11/05            Shell v. Fireman's Fund Insurance Company
Appellate Division, Second Department
Disclaimer on One Party’s Late Notice is Insufficient to Deny Coverage on Another’s Late Notice.
Now this one’s worth considering and remembering.

Shell is injured in January 2000.  He sued the Parks, owner and operator of the car that caused him injury.  The Parks defaulted and judgment was entered against them in September 2002. Shell served a copy of the judgment on the Parks’ carrier, Fireman’s Fund in late September 2002, two years and nine months after the accident.  It was the Fund’s first notice of the claim.  However, the Fund had notice of the accident when it received an inter-company arbitration demand (loss transfer) seeing adjustment of no fault benefits in April of 2002. That same month, on April 10, 2002, the Fund properly disclaimed coverage for this claim based on late notice of the accident given by the insured.  A copy of that letter was sent both to the Parks and to Shell.  However, that letter only denied coverage for that loss transfer claim and did not deny coverage for Shell’s personal claim.  When Shell brought a direct action to enforce the judgment he obtained against the Parks, the carrier served an answer dated October 20, 2003 relying on its April 2002 disclaimer letter.

The court held that the Fund’s reliance on its disclaimer dated April 10, 2002, was misplaced. An insurer's justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer. The letter dated April 10, 2002, disclaimed coverage on the ground that its insured failed to give "prompt notice of this claim," a no-fault subrogation claim. This language made no reference to the plaintiffs' claim in the underlying action against the Parks. Therefore, as the Supreme Court observed, albeit for a different reason, the letter dated April 10, 2002, could not serve as a disclaimer of the plaintiffs' claim in the underlying action against the Parks. Moreover, the letter dated April 10, 2002, was based on the failure of Claymonth Park to give prompt notice and made no reference to the failure of the plaintiff Nathaniel Shell, the injured party, to give such notice.

Thus, the defendant's answer in this action was, in effect, the only disclaimer of coverage of the plaintiffs' claim. Since it was furnished over 12 months after the plaintiffs notified the defendant of their claim by way of service of a copy of their judgment against the Parks, the disclaimer, as a matter of law, was not made "as soon as is reasonably possible" 

The NY counseling point cannot be overemphasized: 

  • Disclaim promptly or else risk losing your right to do so:
  • Under the New York Insurance Law, both the insured and the injured part are authorized to give notice of accidents and claims;
  • When disclaiming on late notice, a carrier must make certain it identifies all the reasons for denial, including late notice by the insured AND the injured party “or any other claimant” and promptly send that notice to all involved.

 

4/11/05            Kahn v. Allstate Insurance Company

Appellate Division, Second Department

Exclusion for Intentional Conduct and Untimely Notice by Insured Equals No Coverage

Kahn alleged breach of contract in that the defendants wrongfully disclaimed insurance coverage and refused to defend him in an underlying action.  The Court found that the allegations in the amended complaint solely and entirely within the exclusions for intentional conduct in the policies and so there was no possible factual or legal basis upon which they may have been obligated to indemnify him.  Furthermore, the insurer demonstrated that the plaintiff did not give notice of his claim for 67 days and did not provide a copy of the pleading in the underlying action for 74 days or until three days after his privately-retained attorney moved for summary judgment. 

 

4/11/05            Luckey v. Bauch

Appellate Division, Second Department

Inadmissible and Unsworn Medical Reports Not Sufficient To Oppose Serious Injury Motion

Defendants' evidence was sufficient to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  Plaintiff failed to rebut this evidence with numerous inadmissible, unsworn medical reports that plaintiff’s doctor relied upon in making his diagnosis.  Moreover, the affirmed medical report of her expert failed to adequately account for the injuries to the plaintiff's neck and back as a result of two other motor vehicle accidents, one which occurred before, and one after, the subject accident.

 

 

 

 

 

 

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.


4/18/05            Vanderbilt v. Continental Casualty Company

Connecticut Supreme Court

Putting the Potential in Potential Responsible Party: A PRP Letter Constitutes a Suit within the Meaning of a Comprehensive General Liability Insurance Policy
An insurer’s duty to defend is triggered upon receipt of a potentially responsible party letter used by the Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). A PRP letter from the EPA creates immediate legal consequences and thus differs from a conventional demand letter based on a personal injury claim. The holding is limited accordingly.

 

Submitted by: Kimberly D. Baker and Michael White [Williams, Kastner & Gibbs]


4/15/05            Suopys v. Omaha Property & Casualty

United States Court of Appeals for the Third Circuit

Under SFIP, Sixty-Day Period For Filing Proof Of Loss Requires Strict Compliance
Appellant appealed from an order of the United States District Court for the District of New Jersey granting summary judgment in favor of Omaha Property & Casualty (“Omaha”). Appellant claimed that he sustained property losses that are covered by the Standard Flood Insurance Policy (“SFIP”) issued to him by Omaha in its capacity as a “Write-Your-Own” Program Company participant in the National Flood Insurance Program (“NFIP”). The SFIP requires that an insured claiming damage for flood loss provide the WYO carrier with proof of loss within 60 days from the date of the alleged loss. 44 C.F.R. Pt. 61 App. A(1), Art. 9(J) (2000) / VII(J) (2003). The appeal presented the issue as to whether under the SFIP, the 60-day period for filing proof of loss, including the filing of an adjuster’s report in lieu of proof of loss, is waivable absent the consent of the Federal Emergency Management Agency (“FEMA”). The Appellate Court affirmed the grant of summary judgment in favor of Omaha based upon appellant’s failure to strictly comply with SFIP provisions regarding proof of loss.

Submitted by: Bruce D. Celebrezze and Jasbina Ahluwalia (Sedgwick, Detert, Moran & Arnold)


4/15/05            Dryden v. Pedemonti

Florida District Court of Appeal, Fifth District

Executing General Release May Result In Court Finding Subrogated Claim Of Carrier Against Tortfeasor Extinguished
Appellant had made an offer to settle a tort lawsuit filed against him by the appellee, and subsequently sought an award of attorney fees and costs pursuant to Florida Rule of Civil Procedure 1.442. Appellant appeals the trial court’s order which struck his proposal for settlement after a final judgment based on the trial court’s determination that the release terms required by the proposal were ambiguous and was stated with insufficient particularity. The release provided, in pertinent part, “any subrogated interest of any third party by virtue of any services or benefits provided by [sic] the Releasor, including, but not limited to, hospital liens, doctor’s, [sic] liens, worker’s compensation liens, Champus liens and any other liens…”.At the oral argument, the attorneys for the appellant and the appellee were asked whether the release clause language contained in the proposed settlement would potentially extinguish appellee’s first party PIP and health insurance claims. Appellant’s attorney said it clearly would not and appellee’s attorney said it clearly would or could. The court held: “By executing the general release proposed in this case, appellee could have been found by this court to have extinguished any subrogated claim against the tortfeasor then held or later acquired by her PIP carrier or health insurance carrier, thereby resulting in this court saying that he had recovered all such claims from the tortfeasor. At least, it is not as clear and as certain as it should be, in order to task a plaintiff with the duty to accept a proposal for settlement pursuant to the offer of judgment rule, or risk the sanction of paying the defendant’s attorney’s fees.”

Submitted by: Bruce D. Celebrezze and Jasbina Ahluwalia (Sedgwick, Detert, Moran & Arnold)


4/13/05            Walcott v. Allstate New Jersey Insurance Company

New
Jersey Appellate Court

Automobile Carrier Required To Pay First-Party Benefits To Intoxicated Insured
Defendant-Carrier refused to extend First-Party benefits to its insured, the plaintiff, who pled guilty to a Driving While Intoxicated (DWI) charge in connection her one-car collision. Plaintiff commenced suit, and a classic statutory construction battle ensued. Defendant relied upon its policy exclusions specific to operating a vehicle under the influence of alcohol and a statute precluding a convicted DWI driver from seeking economic and non-economic recovery from a third-party, arguing the statute expanded another statute granting First-Party benefits as a matter of public policy. The Court, finding no such extension of the statute, found the First-Party benefit statute to be clear in its extension of benefits to all such claimants, regardless of whether they were convicted of DWI. The Court specifically noted that the Legislature considered and rejected denying these benefits to individuals convicted of DWI.

 

Submitted by: William E. Vita and James F. Gallagher (Gallagher Gosseen Faller & Crowley

4/12/05            Watson v. Travelers Indemnity Company

State of Michigan Court of Appeals

Pollution Exclusion Absolute Even Where Injuries Caused By Toxic Chemicals In Immediate Area Of Intended Use
The insured filed a complaint against defendants seeking a declaratory judgment that defendants owed a duty to defend and indemnify the insured in an underlying action involving allegations that the underlying plaintiff suffered bodily injury as a result of inhaling fumes from the Burmastic/diesel fuel mixture that had entered his room. Defendants moved for summary disposition arguing that the pollution exclusion clause precluded coverage. The insured argued that case law established that the pollution exclusion clause was inapplicable under the circumstances, i.e., where the “materials were still confined within the general area of their intended use.” The primary dispute at issue concerned the parties’ disagreement over the appropriate rule of law to apply under the circumstances to determine whether the pollution exclusion clause of the CGL policy barred coverage to the insured. Defendants argued that the court should follow several court decisions supporting that the claim is barred by the exclusion clause; whereas plaintiff argued that the court should instead follow a Sixth Circuit decision finding that a pollution exclusion clause did not bar coverage because the clause was ambiguous. The court held that given plaintiff was injured after inhaling fumes from chemicals that were splashed into his dorm room; the pollution exclusion clause bars coverage because the incident clearly qualifies as the “discharge, dispersal, seepage, migration, release or escape of pollutants.” Accordingly, the court concluded that under the binding decisions of the court the pollution exclusion clause is absolute, and does not allow the court to hold otherwise on the ground that (1) the pollution was not “traditional environmental pollution;” or (2) the injuries were caused by toxic chemicals in the immediate area of their intended use.

 

Submitted by: Bruce D. Celebrezze and Jasbina Ahluwalia (Sedgwick, Detert, Moran & Arnold)

 

 

 

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Turner-Brewster v. Arce


         Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered September 27, 2004, which, to the extent appealed from, denied the Arce defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs or disbursements.

This case involves a car accident on the Cross Bronx Expressway on May 18, 2000. After the Arce vehicle struck a vehicle owned and operated, respectively, by defendants Vault and Mayor, plaintiffs' vehicle, stopped in traffic, was struck from the rear by the Vault/Mayor vehicle and, in turn, struck the vehicle in front. At the outset, we reject the Arces' argument that there is no admissible evidence that they were the cause of the accident. While the Arce vehicle never made contact with plaintiffs' car, there is a question as to whether the impact it made with the Vault/Mayor vehicle propelled it into plaintiffs' vehicle or prevented Mayor from braking sufficiently to prevent the impact with plaintiffs.

After the accident, plaintiffs were treated for injuries resulting therefrom and were found to have sustained limitations in movement, which their respective doctors concluded were permanent, in both the cervical and lumbar spine. While plaintiffs' experts' opinions were disputed by defendants' experts, who arrived at a contrary conclusion, the experts' affidavits offered sufficient objective medical proof of serious injury to withstand summary judgment.

Plaintiff Turner-Brewster, the driver, underwent five months of treatment and then none for some 3½ years, until examined in connection with this summary judgment motion. Plaintiff Turner, the passenger, was treated, post-accident, for about six weeks and then underwent no further treatment until examined almost four years later in connection with this motion. While the Arce defendants argue that plaintiffs' experts offered no explanations for the significant gap between initial treatment and the examinations in connection with this motion, the experts' affidavits stated that after the initial treatment, plaintiffs had received "maximum chiropractic improvement" (Turner-Brewster) and "maximum improvement" (Turner), and were instructed to resume activities to the extent tolerated. In Brown v Achy (9 AD3d 30, 33-34 [2004]), where the chiropractor averred that the plaintiff had received "an adequate course of conservative management and had reached her maximal medical improvement when she stopped treating with me," this Court held that the "plaintiff has, with minimal adequacy, explained her treatment gap in this case." Since we are unable to perceive any discernible difference between this case and Brown, we conclude, at this juncture, that plaintiffs have sufficiently explained the gap.

Petinrin v. Levering
 

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 27, 2004, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs' submissions with respect to their claimed cervical and lumbar spine limitations suffer from the lack of any contemporaneous qualitative evidence of such restriction. Although each plaintiff was examined shortly after the accident and found to have limitations, Dr. Francois' initial reports fail to quantify any such limitations. Dr. Francois only purports to quantify plaintiffs' limitations in a reevaluation some 2½ years later, without any explanation for the time gap.

The limitations described by the chiropractors are contained in unsworn and therefore inadmissible reports. In addition, plaintiffs' own testimony failed to support the conclusion that their injuries caused a significant limitation in their activities where, inter alia, each returned to work within one to three weeks. In the absence of admissible contemporaneous evidence of serious injury, plaintiffs' proffered conclusions are insufficient (see Toulson v Young Han Pae, 13 AD3d 317 [2004]).

 

In the Matter of Allstate Insurance Company v.Aziz
 

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated May 18, 2004, as denied the petition.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, with costs, and the petition is granted.

The respondents allegedly were injured when the vehicle in which they were passengers collided with another vehicle, and was then struck in the rear by a third vehicle. The third vehicle fled the scene, and the identity of its owner and operator has never been ascertained. At the time of the accident, the vehicle the respondents were traveling in was insured by the petitioner, Allstate Insurance Company (hereinafter Allstate). Shortly after the accident, the respondents' attorney notified Allstate that the respondents were making a claim for uninsured/underinsured motorist benefits under the policy it had issued to its insured. However, neither this claim letter, nor the "Notice of Intention to Make Claim" forms and applications for no-fault benefits which the respondents submitted to Allstate, indicated that an unidentified or hit-and-run vehicle was involved in the accident. The respondents subsequently demanded arbitration of their claim for uninsured motorist benefits arising from a hit-and-run accident, and Allstate commenced this proceeding to permanently stay arbitration. In its petition, Allstate alleged that the respondents failed to comply with a policy provision that required a claimant to file a statement under oath, within 90 days after the accident, that he or she has a cause of action arising out of an accident with a hit-and-run vehicle. [*2]In opposition to the petition, the respondents argued that the notice provisions of Allstate's policy were ambiguous because another section of its uninsured motorist endorsement required a claimant to furnish sworn proof of claim "after written request' by Allstate. The Supreme Court denied Allstate's application for a permanent stay, and we now reverse.

The requirement that a claimant file a sworn statement that he or she has a cause of action arising out of an accident with a hit-and-run vehicle, within 90 days after the accident, is a condition precedent to coverage under an uninsured motorist endorsement (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636). Absent a valid excuse, the failure to comply with this condition precedent vitiates coverage (see Matter of AllCity Ins. Co. v Jimenez, 78 NY2d 1054; Matter of Empire Ins. Co. v Dorsainvil, supra; Matter of Interboro Indem. Mut. Ins. Co. v Napolitano, 232 AD2d 561; Matter of Travelers Indem. Co. v Madera, 189 AD2d 570). However, we have also recognized that where, as here, an uninsured motorist endorsement contains ambiguous notice of claim provisions, "a failure to file a sworn statement of the hit-and-run claim * * * does not necessarily vitiate coverage when the carrier otherwise receives adequate notice of the claim" within the requisite 90-day period (Matter of American Home Assur. Co. v Joseph, 213 AD2d 633 at 634; see also Matter of Eveready Ins. Co. v Farrell, 304 AD2d 830; Matter of Eveready Ins. Co. v Ruiz, 208 AD2d 923). Here, neither the respondents' claim letter, applications for no-fault benefits, nor "Notice of Intention to Make Claim" forms provided Allstate with any notice that a hit-and-run vehicle had been involved in the accident. Under these circumstances, the respondents failed to provide Allstate with adequate notice of their claim. Thus, the petition for a permanent stay of arbitration should have been granted (see Matter of American Home Assur. Co. v Joseph, supra).

Shell v. Fireman's Fund Insurance Company


         In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated April 8, 2004, which denied their motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court dated July 16, 2004, as, upon reargument and renewal, adhered to its original determination.

ORDERED that the appeal from the order dated April 8, 2004, is dismissed, as that order was superseded by the order dated July 16, 2004, made upon reargument and renewal; and it is further,

ORDERED that the order dated July 16, 2004, is reversed insofar as appealed from, on the law, and upon reargument and renewal, the order dated April 8, 2004, is vacated, the complaint is reinstated, the plaintiffs' motion for summary judgment is granted, and the cross motion is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs. [*2]

The plaintiff Nathaniel Shell allegedly was injured on January 2, 2000, in a motor vehicle accident involving Raul L. Park, the driver of the alleged offending vehicle, which was owned by Claymonth Park. At the time of the accident, Claymonth Park's vehicle was insured by the defendant. The plaintiffs commenced an action against Raul L. Park and Claymonth Park (hereinafter the Parks) to recover damages for personal injuries sustained by Nathaniel Shell.

On September 24, 2002, the Supreme Court entered judgment against the Parks. A copy of this judgment was served on the defendant on September 27, 2002. This was the first notice of the plaintiffs' claim given to the defendant by anyone. However, the defendant received tardy notice of the accident from the plaintiffs' insurer by way of a Subrogation Intercompany Arbitration Demand dated April 5, 2002, seeking adjustment of no-fault benefits. The defendant, by letter dated April 10, 2002, promptly disclaimed coverage for "this claim" submitted by the plaintiffs' insurance company because the defendant's own insured failed to give prompt notice of it. The letter dated April 10, 2002, addressed to Claymonth Park, indicated that a copy of it was sent to the plaintiff Nathaniel Shell.

Relying on its disclaimer dated April 10, 2002, the defendant did not satisfy the plaintiffs' judgment. The plaintiffs commenced this action on July 10, 2003, and the defendant served an answer dated October 20, 2003. The plaintiffs treated the answer as a disclaimer of their claim as injured parties (see Insurance Law § 3420[a][3]) on the basis that the answer pleaded that the plaintiffs were subject to all defenses against the insured party and that the insured party failed to give the defendant prompt notice of the accident or loss. Since the disclaimer was made more than 12 months after the defendant was notified of the plaintiffs' claim by way of service of a copy of the judgment, the plaintiffs moved for summary judgment based on the tardiness of the disclaimer. The defendant, in support of its cross motion for summary judgment, argued that its disclaimer letter dated April 10, 2002, covered the injured parties' claim embodied in the judgment. The Supreme Court held that the disclaimer dated April 10, 2002, was insufficient to cover the plaintiffs' claim because the defendant was not aware of the claim at the time it sent the letter. Instead, it held that the defendant was first apprised of the plaintiffs' claim when it received the summons and complaint in this action, and thus, the defense of late notice asserted in its answer was timely.

The plaintiffs moved for reargument and renewal, on the ground that the Supreme Court overlooked the date of the defendant's receipt of the plaintiffs' judgment as its first notice of the claim. In addition, the plaintiffs referred to a letter obtained in discovery that, they argued, evidenced the defendant's awareness of the claim of the plaintiff Nathaniel Shell as early as March 26, 2002. The Supreme Court, in its order dated July 16, 2004, upon granting reargument and renewal, adhered to its original determination. In that order, the court indicated that the letter dated March 26, 2002, did not "assert a claim by [the] plaintiffs against [the] defendants." We reverse.

The defendant's reliance on its disclaimer dated April 10, 2002, was misplaced. An insurer's justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer (see General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; Pawley Interior Contr. v Harleysville Ins. Co., 11 AD3d 595, 596; Prus v Glencott Realty Corp., 10 AD3d 390, 391). The letter dated April 10, 2002, disclaimed coverage on the ground that its insured failed to give "prompt notice of this claim," a no-fault subrogation claim. This language made no reference to the plaintiffs' claim in the underlying action against the Parks. Therefore, as the Supreme Court observed, albeit for a different reason, the letter dated April 10, 2002, could not serve as a disclaimer [*3]of the plaintiffs' claim in the underlying action against the Parks. Moreover, the letter dated April 10, 2002, was based on the failure of Claymonth Park to give prompt notice and made no reference to the failure of the plaintiff Nathaniel Shell, the injured party, to give such notice (see Vacca v State Farm Ins. Co., AD3d [2d Dept, Feb. 14, 2005]). Therefore, the disclaimer dated April 10, 2002, was ineffective against the plaintiffs (see General Acc. Ins. Group v Cirucci, supra; Halali v Evanston Ins. Co., 8 AD3d 431, 433; Matter of State Farm Mut. Auto Ins. Co. v Cooper, 303 AD2d 414).

Thus, the defendant's answer in this action was, in effect, the only disclaimer of coverage of the plaintiffs' claim. Since it was furnished over 12 months after the plaintiffs notified the defendant of their claim by way of service of a copy of their judgment against the Parks, the disclaimer, as a matter of law, was not made "as soon as is reasonably possible" (Insurance Law § 3420[d]; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030; Government Empls. Ins. Co. v Kolodny, 269 AD2d 564, 565). The lack of timeliness of the disclaimer renders academic any consideration of the validity of the grounds asserted therein including the staleness of notice furnished by the insured or by the injured party (see Crowningshield v Nationwide Mut. Ins. Co., 255 AD2d 813, 815; State Farm Mut. Auto Ins. Co. v Clift, 249 AD2d 800, 801; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507; Kramer v Interboro Mut. Indem. Ins. Co., 176 AD2d 308).

Accordingly, the Supreme Court should have granted summary judgment in favor of the plaintiffs rather than the defendant.

In view of the foregoing, it is unnecessary to reach the remaining contentions of the parties.

 

Kahn v. Allstate Insurance Company




In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Skelos, J.), dated April 23, 2004, which denied his motion for summary judgment, granted the cross motion of the defendant Public Service Mutual Insurance Company for summary judgment dismissing the complaint insofar as asserted against it, and, upon searching the record, granted summary judgment to the defendant Allstate Insurance Company pursuant to CPLR 3212(b) dismissing the complaint insofar as asserted against it.

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

The plaintiff commenced this action to recover damages for breach of contract alleging that the defendants wrongfully disclaimed insurance coverage and refused to defend him in an underlying action entitled Besicorp, Ltd. v Kahn. "[A]n insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443; see Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65). "However, an insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no [*2]possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45; see Town of Massena v Healthcare Underwriters Mut. Ins. Co., supra at 445).

The allegations asserted in the amended complaint as to the plaintiff in the underlying action cast that pleading solely and entirely within the exclusions for intentional conduct contained in the insurance policies issued by the defendants in this action. Therefore, there was no possible factual or legal basis upon which they may have been obligated to indemnify him (see Physicians' Reciprocal Insurers v Loeb, 291 AD2d 541; Interboro Mut. Indem. Ins. Co. v Fatsis, 279 AD2d 450, 451). "As a matter of policy, conduct engaged in with the intent to cause injury is not covered by insurance" (Town of Massena v Healthcare Underwriters Mut. Ins. Co., supra at 445).

In any event, "as a condition precedent to an insurer's obligation to defend or indemnify, the insured must provide notice of any occurrence to the insurer within a reasonable period of time" (Brennan Bros. Co., Inc. v Lumbermens Mut. Cas. Co., 14 AD3d 525; C.C.R. Realty of Dutchess v New York Central Mut. Fire Ins. Co., 1 AD3d 304). The defendant Public Service Mutual Insurance Company demonstrated that the plaintiff did not give notice of his claim for 67 days and did not provide a copy of the pleading in the underlying action for 74 days or until three days after his privately-retained attorney moved for summary judgment. In opposition to this prima facie establishment of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to his failure to provide the defendants with timely notice (see Quality Invs., Ltd. v Lloyd's of London, England, 11 AD3d 443; Brennan Bros. Co., Inc. v Lumbermens Mut. Cas. Co., supra). Accordingly, the Supreme Court properly granted the cross motion of the defendant Public Service Mutual Insurance Company for summary judgment dismissing the complaint insofar as asserted against it (see CPLR 3212), and, upon searching the record, properly granted summary judgment to the defendant Allstate Insurance Company dismissing the complaint insofar as asserted against it (see CPLR 3212[b]).

The plaintiff's remaining contentions are without merit.
ADAMS, J.P., KRAUSMAN, RIVERA and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

Hayes v. Johnston

 

Appeal from an order of the Supreme Court (Williams, J.), entered May 20, 2004 in Saratoga County, which partially denied defendant's motion for summary judgment dismissing the complaint.

In this personal injury action arising out of a motor vehicle accident, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court partially denied the motion, dismissing plaintiff's claim for lost earnings, and defendant now appeals.

Defendant met his initial burden of showing that plaintiff, a 46-year-old logger with a history of chronic back pain, suffered no serious injury causally related to the accident by submitting the affidavit of James Storey, the neurologist who conducted an independent medical examination of plaintiff. Storey opined that plaintiff's degenerative disc disease and mild disc bulging had preexisted the accident, and he found no objective evidence that the accident caused or aggravated these conditions. As to plaintiff's claim that the accident caused him to suffer a stroke approximately three months later and this stroke constitutes a qualifying serious injury, Storey opined that no acute stroke occurred after the accident. He explained that, while plaintiff had presented with "some sort of acute symptomatic event," there was no evidence of recent neurologic injury. Instead, the brain lesions observed by MRI scan were old and the mild residual neurological deficits were the result of a cerebellar stroke that plaintiff had suffered many years before the accident. This evidence was sufficient to shift the burden to plaintiff to [*2]come forward with competent medical evidence creating a triable issue of fact as to the existence of a serious injury (see John v Engel, 2 AD3d 1027, 1028 [2003]; Davis v Evan, 304 AD2d 1023, 1024-1025 [2003]).

Plaintiff's efforts to meet this burden are unavailing. The reports of his treating and consulting physicians do not opine that the observed conditions of his spine were caused by the accident (see Dabiere v Yager, 297 AD2d 831, 832 [2002], lv denied 99 NY2d 503 [2002]; Sorriento v Daddario, 282 AD2d 957, 958 [2001]). Nor did plaintiff's physicians identify the diagnostic tests that they had performed or provide any other objective medical basis for their nonobservable findings with regard to his spine (see Temple v Doherty, 301 AD2d 979, 981-982 [2003]; Gillick v Knightes, 279 AD2d 752, 752 [2001]).

Plaintiff's claim that the postaccident stroke constitutes a serious injury within the meaning of the Insurance Law is also unavailing. George Siniapkin and Theodorus Laddis, the physicians who examined plaintiff regarding a preexisting atrial septal defect or hole in his heart discovered after the stroke, opine that the accident caused an embolus which was able to cross from his lower circulatory system through the hole in his heart to his upper circulatory system and, in turn, cause the stroke. They do not, however, opine that the stroke caused a permanent or significant impairment of a body part, function or system. Plaintiff concedes that the stroke symptoms did not persist and he does not rely on them here, arguing instead that the necessity to either take anticoagulants and give up his work as a logger due to the risk of uncontrollable bleeding or abstain from anticoagulants and run the risk of a future stoke is itself a physical limitation constituting a serious injury. We are not persuaded. Given plaintiff's history of a neurological event suffered many years before the accident, Laddis states that he would have to treat plaintiff "as if the atrial septal defect were the culprit" and he offers the alternative of a surgical repair of that defect. His alternative recommendation of surgical repair indicates that the heart defect, and not the postaccident stroke, created the need to use anticoagulants. Thus, Supreme Court erred in failing to grant defendant's motion for summary judgment in its entirety.

Mercure, J.P., Spain, Carpinello and Kane, JJ., concur.

ORDERED that the order is modified, on the law, with costs to defendant, by reversing so much thereof as partially denied defendant's motion for summary judgment; motion granted in its entirety and complaint dismissed; and, as so modified, affirmed.

Luckey v. Bauch


In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated February 27, 2004, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted a transcript of the plaintiff's deposition testimony and copies of her medical records (see Hodges v Jones, 238 AD2d 962). When considered with the affirmed medical reports of their examining orthopedist and neurologist, the defendants' evidence was sufficient 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 burden therefore shifted to the plaintiff to come forward with "competent admissible medical evidence," based on objective findings, sufficient to raise a triable issue of fact that she sustained a serious injury (McLoyrd v Pennypacker, 178 AD2d 227, 228). The plaintiff failed to meet her burden. The plaintiff submitted numerous inadmissible, unsworn medical reports [*2](see Pagano v Kingsbury, 182 AD2d 268; Grasso v Angerami, 79 NY2d 813, 814), which her expert improperly relied upon in making his diagnosis (see Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Moreover, the affirmed medical report of her expert failed to adequately account for the injuries to the plaintiff's neck and back as a result of two other motor vehicle accidents, one which occurred before the subject accident, and one which occurred subsequent to the subject accident (see Rogers v Chiarelli, 10 AD3d 355; McNeil v Dixon, 9 AD3d 481, 482-483; Omar v Goodman, 295 AD2d 413, 414-415).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
FLORIO, J.P., KRAUSMAN, CRANE, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Westchester Medical Center v.  American Transit Insurance Company






Joseph Henig, Bellmore, N.Y., for appellants.

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs, Westchester Medical Center, a/a/o Daniel Cruz, St. Vincent's Hospital & Medical Center, a/a/o Brian Cardimone, and New York and Presbyterian Hospital, a/a/o Stanislaw Zarod, appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated February 6, 2004, as denied their motion for summary judgment on the second and third causes of action.

ORDERED that the appeal by the plaintiff Westchester Medical Center, a/a/o Daniel Cruz, is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, the motion is granted, and the matter is remitted to Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs St. Vincent's Hospital & Medical Center, a/a/o Brian Cardimone, and New York and Presbyterian Hospital, a/a/o Stanislaw Zarod.

The Supreme Court erred in denying that branch of the plaintiffs' motion which was for summary judgment on the second cause of action, which arises from the treatment rendered by St. Vincent's Hospital & Medical Center (hereinafter St. Vincent's) to Brian Cardimone, on the ground that "an issue of fact exists as to whether there was payment by the defendant in accordance [*2]with the DRG schedule." It is undisputed that the defendant failed to pay or deny the claim for Cardimone's treatment within 30 days after proof of such claim was submitted, nor did the defendant seek any further verification of this claim. Instead, the defendant merely tendered a belated partial payment of the claim. The defendant alleges that St. Vincent's billed under the wrong "DRG" code, and that it paid in accordance with the correct code. However, since the defendant never sought any verification of the claim, it is precluded from raising this statutory exclusion defense based upon its failure to issue a denial of claim form within 30 days of its receipt of the claim as required by 11 NYCRR 65.15(g)(3) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286; New York Hosp. Med. Ctr. of Queens v County-Wide Ins. Co., 295 AD2d 583, 584; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16).

The Supreme Court also erred in denying that branch of the plaintiffs' motion which was for summary judgment on the third cause of action, which arises from the treatment rendered by New York and Presbyterian Hospital to Stanislaw Zarod. With respect to this cause of action, the defendant failed to pay or effectively deny the hospital's claim within 30 days of its receipt thereof, nor did it seek any further verification of the claim.

As entitlement to the no-fault benefits, as well as statutory interest and an attorney's fee (see Insurance Law § 5106[a]; 11 NYCRR 65-4.6) was established, we remit the matter to the Supreme Court, Nassau County, to calculate the amount owed for no-fault benefits, statutory interest, and an attorney's fee.
ADAMS, J.P., SANTUCCI, GOLDSTEIN and CRANE, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Cortez v. Countrywide Insurance Co.



Cheven, Keely & Hatzis, New York, N.Y. (Thomas Torto and Jason
Levine of counsel), for appellant.
Jonathan Rice (Mauro Goldberg & Lilling, LLP, Great Neck,
N.Y. [Kenneth Mauro and Anthony F.
DeStefano] of counsel), for
respondent.

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 29, 2002, which, upon granting, in part, the plaintiff's motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $229,815.

ORDERED that the judgment is reversed, on the law, with costs, the motion is denied, upon searching the record, summary judgment is awarded to the defendant, and the complaint is dismissed.

Several years before he commenced the instant action, the plaintiff, who was involved in an automobile accident, commenced an arbitration proceeding against the defendant to recover no-fault benefits he alleged had been improperly denied (see Insurance Law § 5106[b]). By electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits to which he was allegedly entitled as a result of that accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264; Gaul v American Employers' Ins. Co., 302 AD2d 875; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083; Gibeault v Home Ins. Co., 221 AD2d 826).

Although the defendant did not move for summary judgment dismissing the complaint on the ground that the plaintiff was precluded from maintaining this action, this court has the authority pursuant to CPLR 3212(b) to search the record and award summary judgment to a [*2]nonmoving party with respect to a cause of action or issue that was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111). Under the circumstances of this case, as it is clear that the plaintiff is precluded from maintaining this action, we award summary judgment to the defendant and dismiss the complaint.

In light of our determination, we need not reach the defendant's remaining contentions.
H. MILLER, J.P., RITTER, RIVERA and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Batista v.  Olivo


In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated March 4, 2004, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

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

In support of their separate motions for summary judgment, the defendants submitted the deposition testimony of the plaintiffs (see Hodges v Jones, 238 AD2d 962 ), as well as the affirmed medical reports (see Pagano v Kingsbury, 182 AD2d 268, 270; Gleason v Huber, 188 AD2d 581) of an orthopedist, a neurologist, and a radiologist, demonstrating that neither of the plaintiffs sustained a serious injury (see Insurance Law § 5102[d]) as a result of the subject automobile accident. This evidence was sufficient to establish a prima facie case for the defendants (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). [*2]

The plaintiffs therefore were required to come forward with objective medical findings based on a recent examination verifying their subjective complaints of pain and limitations of motion (see Kauderer v Penta, 261 AD2d 365; Carroll v Jennings, 264 AD2d 494). Moreover, any significant lapse of time between the conclusion of the medical treatments of the plaintiffs after the accident and the physical examination conducted by the plaintiffs' expert had to be adequately explained (see Smith v Askew, 264 AD2d 834). Neither the plaintiffs nor their examining physician offered any explanation or discussion concerning the approximately 2½ year gap between the conclusion of their physical therapy treatments and the date of the examination (see Jimenez v Kembla, 272 AD2d 581; Smith v Askew, supra).

Finally, neither plaintiff submitted any medical evidence to raise a triable issue of fact as to their inability to perform substantially all of their daily activities for not less than 90 of the first 180 days subsequent to the accident (see Sainte-Aime v Ho, 274 AD2d 569; Arshad v Gomer, 268 AD2d 450; DiNunzio v County of Suffolk, 256 AD2d 498, 499).

Accordingly, the defendants were entitled to summary judgment dismissing the complaint.
ADAMS, J.P., COZIER, RITTER and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

Progressive Northern Insurance Company v. Rafferty

 

MEMORANDUM AND ORDER

Calendar Date: February 18, 2005
Before: Cardona, P.J., Peters, Carpinello, Mugglin and Lahtinen, JJ.


Lucas G. Mihuta, Albany, for John Rafferty, appellant.
Thomas A. Newman, Albany, for Robert Carmen,
appellant.
Paul G. Hanson, Albany, for respondent.




Carpinello, J.

Appeals (1) from an order of the Supreme Court (Lamont, J.), entered December 19, 2003 in Albany County, which granted plaintiff's motion for summary judgment and declared that plaintiff had no duty to defend or indemnify defendant John Rafferty in an underlying personal injury action, and (2) from an order of said court, entered February 5, 2004 in Albany County, which granted plaintiff's motion for summary judgment dismissing defendant Robert Carman's counterclaim for no-fault insurance benefits.

The following facts are undisputed. On the evening of March 5, 2002, defendant John Rafferty, plaintiff's insured, and defendant Robert Carman were fighting outside, adjacent to Rafferty's car. The car itself was parked a mere two feet in front of a garage. In an attempt to extricate himself from the situation, Rafferty got into his car. Carman, in turn, placed himself between the garage door and the car while his friend blocked Rafferty's car from the rear. Rafferty accelerated and drove Carman into the garage door, severely injuring his leg.

In this action, plaintiff successfully obtained orders declaring that it has no obligation to defend or indemnify Rafferty or to compensate Carman because the conduct engaged in by the former was subject to the policy's exclusion for intentional acts. Both Rafferty and Carman [*2]appeal contending that Rafferty only "lightly" stepped on the accelerator intending only to scare Carman, not injure him. We are unpersuaded.

It is now well settled that there exists "a narrow class of cases in which the intentional act exclusion applies regardless of the insured's subjective intent" (Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293 [2002]). In such cases, "the intentional act exclusion [applies] if the injury [is] 'inherent in the nature' of the wrongful act" (id. at 293, quoting Allstate Ins. Co. v Mugavero, 79 NY2d 153, 161 [1992]). An injury is held to be "inherent in the nature" of an act when the act is so exceptional that "cause and effect cannot be separated; that to do the act is necessarily to do the harm which is its consequence; and that since unquestionably the act is intended, so also is the harm" (Allstate Ins. Co. v Mugavero, supra at 160-161).

In these type of cases, "the theoretical possibility that the insured lacked the subjective intent to cause the harm" (Pistolesi v Nationwide Mut. Fire Ins. Co., 223 AD2d 94, 97 [1996], lv denied 88 NY2d 816 [1996]) does not preclude a finding that, for the purposes of the policy's intentional act exclusion, such injuries are as a matter of law "intentionally caused" (Allstate Ins. Co. v Mugavero, supra at 161; see Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 771 [1998]; Doyle v Allstate Ins. Co., 255 AD2d 795, 796-797 [1998]). Here, Carman's injuries were inherent in the act of placing a car in forward motion when but two feet of space existed between the car, a pedestrian and an immovable object, clearly invoking the intentional act exclusion of Rafferty's policy. For similar reasons, Carman's injuries were not caused by an "accident" and, thus, he was not eligible for no-fault benefits under the policy (see Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 309 AD2d 927, 928 [2003]). Thus, Supreme Court properly granted summary judgment in plaintiff's favor.

Cardona, P.J., Peters, Mugglin and Lahtinen, JJ., concur.

ORDERED that the orders are affirmed, with costs.

 

Knoll v. Seafood Express

 

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about November 10, 2003, which granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs or disbursements.

Plaintiff demonstrated, in opposition to the motion, that his injuries were causally related to the motor vehicle accident at issue. However, he failed to meet his burden of demonstrating "serious injury" within the meaning of Insurance Law § 5104(a) and § 5102(d) (see Gaddy v Eyler, 79 NY2d 955 [1992]).

While the dissent concludes that there is an issue of fact as to whether plaintiff suffered a "significant limitation of use of a body function or system" (§ 5102[d]), plaintiff does not suggest, and the dissent fails to identify, any injuries that would fall into that category. At best, the record shows that plaintiff suffers from "relative numbness" of one side of his body, evidenced by "diminished sensation to light touch and pinprick," "double vision on far left lateral gaze," occasional dizzy spells and a gait imbalance. Absent from the record is a sufficient qualitative or quantitative analysis of the injuries to suggest that, either alone or in combination, they rise to the level of a limitation or limitations which can be considered significant (see Pinkowski v All-States Sawing & Trenching, 1 AD3d 874 [2003]; see also Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

All concur except Mazzarelli and Saxe, JJ. who dissent in a memorandum by Mazzarelli, J. as follows:


MAZZARELLI, J. (dissenting)

I would reverse the order appealed and reinstate plaintiff's complaint because plaintiff's injuries from his August 18, 2000 car accident met the no-fault "serious injury" threshold (Insurance Law § 5102[d]). Plaintiff was the driver of a car that was hit in the rear by a tractor [*2]trailer owned by defendant Seafood Express and driven by defendant Flynn. Plaintiff had a preexisting benign brain stem angioma [FN1]. As a result of the crash the tumor hemorrhaged. The bleeding caused him to experience nausea, headaches, dizziness, weakness, slurred speech, numbness on his left side, and the inability to hold his head up.

Plaintiff was admitted to the hospital within a week of his accident, and doctors determined that because of the nature of the bleeding and its location deep within the right side of plaintiff's mid-brain, he was not a candidate for surgery. Doctors determined to treat his symptoms more conservatively with various medications. Plaintiff stated under oath in May 2003 that he still had the following symptoms: (1) burning in the left side of his head; (2) numbness; (3) trouble keeping his head up; (4) slurred speech; (5) vision problems in his left eye; (6) problems maintaining his balance; and (7) periodic nausea, headaches, dizziness and weakness.

Dr. Belok, plaintiff's neurologist, submitted affirmed reports from examinations he conducted on September 7 and November 20, 2000, and March 19, 2003. Dr. Belok described tests that he performed on plaintiff, and in March of 2003 he offered the following diagnosis:

Right upper mid brain/thalamic syndrome resulting in disequilibrium and horizontal diplopia due to a lateral gaze paresis. He also has a right thalamic pain syndrome resulting in the persistent left hemisensory deficit with burning dysesthesias on the left side.


Dr. Belok opined: "My prognosis is guarded. In view of the persistence of symptoms despite the passage of time, it is less likely that [plaintiff] will have a neurological recovery the longer time elapses without significant improvement in symptoms." Plaintiff had a preexisting benign symptomless angioma, which was aggravated as a result of his accident, with hemorrhaging and measurable physical symptoms. Where, as here, a plaintiff has a preexisting medical condition, it is not the original injury, but the aggravation of that condition as caused by that accident, that must be demonstrably serious (Trunk v Spross, 306 AD2d 463 [2003]; see also Walsh v Kings Plaza Replacement Serv., 239 AD2d 408 [1997]). Thus, I would find plaintiff's submissions sufficient to raise an issue of fact as to whether the hemorrhaging and the associated neurological deficits themselves constituted a "serious injury" under the category of a "significant limitation of use of a body function or system" (see Weider v Senebouthyrath, 182 AD2d 1124 [1992]).

The majority relies on Pinkowski v All-States Sawing & Trenching (1 AD3d 874 [2003]) to support the grant of defendants' motion. In that case, the plaintiff sought to recover for injuries he suffered in two auto accidents, one in August 1997 and the other in September 1999. The injuries included some stiffening of the cervical spine, an exacerbation of disturbed sleep syndrome, and limitations of the range of motion in the plaintiff's right shoulder, which were not quantified. The Third Department rejected the plaintiff's claim that he had suffered a "significant limitation of use of a body function or system" because the doctors' reports were deficient in either "fail[ing] to quantitatively or qualitatively establish serious injury or
. . . fail[ing] to causally relate an injury to the 1999 accident" (id. at 875).

By contrast, in this case it is uncontested that plaintiff's injuries were the direct result of the August 18, 2000 car accident that caused bleeding in plaintiff's brain. Further, plaintiff's [*3]doctors have explained his injuries, giving "qualitative" descriptions of limitations of the "normal function, purpose and use" of a number of plaintiff's body parts resulting from brain damage caused by the accident (see Toure v Avis Rent a Car Sys., 98 NY2d 345, 353 quoting Dufel v Green, 84 NY2d 795, 798 [1995]). These include eyesight problems, numbness throughout plaintiff's entire left side, and equilibrium problems which prevent him from walking properly. Certainly, to the extent that the parties' medical experts may have expressed disagreement about the severity of plaintiff's present condition, the diverse opinions are sufficient to raise issues that are for the jury, not the court, to resolve (Weider, 182 AD2d 1124, supra).

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

ENTERED: APRIL 21, 2005

CLERK

Footnotes



Footnote 1:An angioma is defined as a tumor composed chiefly of blood vessels or lymph vessels.

 



Ayres Memorial Animal Shelter, Inc. v. Montgomery County SPCA

 

MEMORANDUM AND ORDER


Mercure, J.P.

Appeal from an order and amended order of the Supreme Court (Sise, J.), entered November 26, 2003 and December 3, 2003 in Montgomery County, which, inter alia, granted defendant's motion to vacate a default judgment entered against it.

Upon defendant's failure to timely answer the complaint, plaintiff applied pursuant to CPLR 3215 (a) to the County Clerk for a default judgment in the amount of $78,759.66, which was entered by the County Clerk. Less than one month later, defendant moved by order to show cause for an order permitting defendant to, among other things, open the default judgment and serve an answer to the complaint. Supreme Court granted all of the relief sought by defendant. Plaintiff appeals, and we affirm.

In this action, plaintiff is seeking reimbursement from defendant for the cost of boarding certain domestic animals for a significant period of time. The complaint sounds in quantum meruit (see Precision Founds. v Ives, 4 AD3d 589, 591 [2004]); clearly it is not a claim "for a sum certain or for a sum which can by computation be made certain" (CPLR 3215 [a]; see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781, 784 [1989]). Thus, the County Clerk lacked authority to [*2]enter the default judgment (see Action Lawn & Landscaping v East Glenville Fire Dist., 254 AD2d 585, 587 [1998]; Jannon v Van Buskirk, 227 AD2d 844 [1996]; Tutera v Nagel, 160 AD2d 1058 [1990]). Given that the default judgment was a nullity, the motion to vacate it did not require defendant to set forth a reasonable excuse for the default or a meritorious defense to the action (see Gibbs v Hoot Owl Sportsman's Club, 257 AD2d 942, 944-945 [1999]; White v Weiler, 255 AD2d 952 [1998]; Tutera v Nagel, supra; see also CPLR 5015 [a] [4]). Directing a hearing on damages without granting defendant leave to answer may have been proper if plaintiff had sought a default judgment from Supreme Court (see CPLR 3215 [a], [b]; see also Gibbs v Hoot Owl Sportsman's Club, supra), but where, as here, the default judgment was improperly obtained through the County Clerk, Supreme Court properly vacated the default judgment in its entirety (see Gibbs v Hoot Owl Sportsman's Club, supra; Action Lawn & Landscaping v East Glenville Fire Dist., supra at 587; Jannon v Van Buskirk, supra at 844-845).

Nor did Supreme Court abuse its discretion in permitting defendant to serve a late answer to the complaint. Defendant's submission in support of the order to show cause established that defendant gave the summons and complaint to its insurance agent upon receipt thereof, and defendant's default in answering was attributable to the insurance company's failure to properly obtain counsel, a reasonable excuse for the delay in this matter (see CPLR 3012 [d]; Winney v County of Saratoga, 252 AD2d 882, 884 [1998]; Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853 [1997]; see also Cerrone v Fasulo, 245 AD2d 793, 794 [1997]; cf. Pagano v U.W. Marx, Inc., 223 AD2d 817, 818 [1996]). We note that plaintiff failed to show either that the default was willful or that it was prejudiced thereby and CPLR 3012 (d) does not require a showing of merit as a precondition to obtaining relief where, as here, the delay is of relatively short duration (see Aabel v Town of Poughkeepsie, 301 AD2d 739, 740 [2003]).

Crew III, Mugglin, Lahtinen and Kane, JJ., concur.

ORDERED that the order and amended order are affirmed, with costs.