6/2/05              American Re-Insurance v. United States Fidelity & Guaranty

Appellate Division, First Department

Settlement Documents in Suit between Insured and Insurer Discoverable in Reinsurance Proceeding

USF&G is required to produce documents related to the settlement in an underlying action between the USF&G defendants and their insureds.  The court held that the disputed documents relating to the settlement negotiations are discoverable since they are material and necessary to the reinsurers' defense of the action and the so-called "settlement privilege" is inapplicable since the reinsurer sought the settlement-related materials for a purpose other than proving USF&G's liability in the underlying coverage action.

 

5/31/05            Pennsylvania Lumbermans v. D & Sons Construction Corp

Appellate Division, Second Department

Delay of 47 Days Not a Prompt Disclaimer by Carrier

Carrier first became aware of Majlinger's accident on November 20, 2001, when it received a copy of the answer filed by a codefendant in the underlying action.  The carrier then retained an investigator to determine when D & Sons first learned of the accident in the underlying action.  On December 11, 2001, the investigator interviewed D & Sons' project supervisor, Frank Percy, who stated that he first learned of the accident on January 13, 2001, or January 14, 2001, but elected not to notify the plaintiff because Majlinger's employer had its own insurance coverage.  D & Sons did not dispute that, upon learning of the accident at that time, it failed to notify the plaintiff.  Plaintiff did not, in effect, disclaim coverage until 47 days later, on February 4, 2002, when it commenced this action for a judgment declaring that it is not obligated to defend or indemnify.  Plaintiff first learned of the grounds for disclaimer on December 19, 2001, when its investigator informed it, in no uncertain terms, that D & Sons had been aware of Majlinger's accident as early as January 13, 2001, or January 14, 2001, but elected not to notify it. Instead of promptly disclaiming coverage, however, the plaintiff chose first to consult with counsel, ultimately filing a declaratory judgment action some 47 days later.

 

5/31/05            Suk Ching Yeung v. Rojas

Appellate Division, Second Department

No Medical Proof, No Admissible Evidence, No Plaintiff’s Case

The plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In opposition to the threshold motion, plaintiff failed to present any medical proof that was contemporaneous with the accident showing any initial range of motion restrictions in her spine. The report of the plaintiff's treating physician was not affirmed and thus, did not constitute competent proof of her injuries.  In addition, the report of another doctor was based on an examination of the plaintiff approximately 4 years and 9 months after the accident.

 

5/31/05            Walker v. Village of Ossining

Appellate Division, Second Department

Yes, the Defendant also has a Requirement to put Forward Admissible Proof to Succeed

Plaintiff’s motion to renew before the Lower Court is successful and upheld on appeal as the defendant failed to make a prima facie showing, upon the original motion, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  One medical report submitted was unaffirmed and therefore inadmissible.  A second report, by an acupuncturist, who was not a medical doctor, was inadmissible since it was not in affidavit form.  The remaining reports were insufficient to show the absence of a serious injury.

 

5/31/05            82-04 Lefferts Tenants, Corp. v. Federal Insurance Company

Appellate Division, Second Department

Failure to Disclose Pending Suit Prior to Effective Date of Policy is Breach

Insurer demonstrated that 82-04 Lefferts Tenants, Corp. sought a defense and indemnification with respect to litigation which was substantially the same as other, pending litigation of which it had knowledge prior to the effective date of the insurance policy at issue in this case. Thus, insurer established that the litigation was excluded from coverage pursuant to a policy endorsement.

 

5/31/05            State Farm Insurance Company v. Langan

Appellate Division, Second Department

Inadmissible Police Report Insufficient to Support Finding of Accident Rather then Intentional Conduct

Appellate Division upholds the Supreme Court’s denial of the defendant's cross motion that sought summary judgment declaring that the plaintiff was obligated to provide insurance coverage for the injuries sustained by Spicehandler as the result of a hit-and-run incident on February 12, 2002, because it was not supported by admissible evidence.  The defendant relied on a police report to establish the accidental nature of the incident, but there is no evidence that the reporting officer witnessed the incident or that the eyewitness referred to in the report had a business duty to report the facts to the officer. Thus, the portion of the police report relied upon by the defendant constituted inadmissible hearsay.

 

5/31/05            State Farm Mutual Automobile Insurance Company v. Bigler
Appellate Division, Second Department
Offset Provision Clearly Referenced On Declarations Page Valid to Cap Award

CPLR article 75 to confirm an arbitration award.  The declarations page of the automobile insurance policy contained a single, combined limit of uninsured/underinsured motorists’ coverage. The offset provision set forth in the policy was therefore valid and enforceable.  Since the amount to be offset in this case was equal to the limit of coverage available under the policy, the Supreme Court properly granted the petition to confirm the arbitration award.  Furthermore, the inclusion on the declarations page of the policy of language which alerted the appellant to the existence of the offset and directed him to the specific endorsement where it could be found served to ameliorate any concerns that the stated limit of underinsured motorist’s coverage was misleading, ambiguous, or deceptive.

 

5/26/05            Hritz v. Saco

Appellate Division, First Department

Mold Exclusion Applies and Advanced Monies Must Be Repaid by Insured

The Connecticut home purchased by plaintiffs was insured against the risk of physical loss by defendant Great Northern, but the policy clearly and unambiguously excluded "any loss that is contributed to, made worse by, or in any way results from “fungi [or] mold." Mold and mycotoxins arising therefrom were discovered during renovations which allegedly caused plaintiff Mary Elizabeth Hritz to incur severe allergic reactions.  . During the investigation of the claim, Great Northern advanced plaintiffs extra living expenses with an agreement to repay such amounts should it be determined that their claim was not covered.  The Court found the exclusion allowed Great Northern to disclaim coverage and ordered the insured to reimburse the advances.

5/26/05            Great Northern Insurance Company v. Interior Construction Corp.
Appellate Division, First Department
Parties May Allocate Risks by Use of Insurance Policies

While lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy, sophisticated parties can agreed to allocate the risk of liability to third parties between themselves, through the use of insurance.  Here, the lease demonstrated the intent of the parties for Depository to indemnify New Water for the latter's own negligence, except as to claims arising from a condition created by New Water or from any accident, injury or damage caused solely by New Water's negligence. The lease further requires Depository to maintain insurance and to name New Water as an additional insured on its comprehensive general liability policy, and requires both parties to include mutual waivers of subrogation in their respective policies. Since it was stipulated that New Water's negligence was not the sole cause of the damage, New Water is entitled to contractual indemnification under the lease.

5/24/05            Pryor v. New York Property Insurance Underwriting Association
Appellate Division, First Department
Under Fire Policy, Where Limited Partner Willfully Refuses to Participate in EUO, General Partner Loses Coverage
General partner, with 1% interest in proceeds under fire policy loses coverage where limited partner, with 33% interest, willfully refuses to participate in examinations under oath.

5/23/05            Donato v, ELRAC, Inc. and Holm

Appellate Division, Second Department
Yet Another ELRAC Case – Question of Fact on Permission by Lessor and Lessee      
Where would we be with ELRAC cases? Four days before accident,  Mrs. Holm rents car from Enterprise (ELRAC).  For reasons yet to be determined, her 13-year old son is driving the car, with a young passenger and (surprisingly) loses control over the car and the passenger is injured.  The passenger sues ELRAC and Mrs. Holm and each move for summary judgment.  Court finds that there is a question of fact as to whether the 13 year old had permission to drive the car so ELRAC’s motion for summary judgment is denied.  In addition, there was no proof that car wasn’t rented for a period in excess of 30 days.  Since Mrs. Holm would be considered another owner of the car if she was a long term lessee, her motion for summary judgment was also denied.

5/23/05            Hegarty v. Ballee
Appellate Division, Second Department

Carrier’s Delay In Determining Coverage Not Reasonable Excuse To Vacate Default
A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must proffer both a reasonable excuse for the default and a meritorious defense to the action.  The defendant failed to demonstrate a reasonable excuse for his default. "An insurance carrier's delay is insufficient to establish a reasonable excuse for a default".   Specifically, an insurance carrier's delay in determining coverage, as was alleged here, is not a sufficient excuse to vacate a default.

 

5/23/05            Vallejo v. Builders for the Family Youth

Appellate Division, Second Department

Threshold Motion Successful Where Treatment Gap Not Explained, No Objective Tests Listed and Reliance on Unsworn Medicals

The defendants made a prima facie showing that neither of the infant plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).  In opposition, the plaintiffs' treating physician failed to provide any explanation regarding the nearly 4½-year gap between the date of the plaintiffs' initial treatments and the date of their subsequent examinations.   In addition, the plaintiffs' treating physician failed to set forth the objective tests he performed to arrive at his conclusions regarding the plaintiffs' alleged limitations of motion.  Further, the plaintiffs' treating physician impermissibly relied upon unsworn medical findings of other doctors.

 

5/23/05            Barrett v. Jeannot

Appellate Division, Second Department

Defendants’ Threshold Motion Insufficient On Its Face

The affirmations of the defendants' medical experts were insufficient to establish a prima facie showing that the plaintiff did not sustain a serious injury.  The defendants' examining orthopedist failed to set forth the objective test or tests performed supporting the claims that there was no limitation of range of motion and the defendants' examining neurologist offered no opinion as to the limitations in functioning alleged by the plaintiff.  Under these circumstances, the Court need not not consider the sufficiency or insufficiency of the plaintiff's opposition papers.

 

5/23/05            Derby v Menchenfriend

Appellate Division, Second Department

Defendant’s Expert Finding Exacerbation of Symptoms = Denial of Threshold Motion

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury (see Insurance Law § 5102[d]) as a result of the accident.  The defendant's medical expert acknowledged that the accident exacerbated the plaintiff's neck and back symptoms. Moreover, the defendant's medical expert examined the plaintiff and did not indicate that she exhibited full range of motion in her cervical and lumbar spines.

 

5/23/05            Caristo v. Standard Fire Insurance Company
Appellate Division, Second Department
Why Did the Boat Sink?  Covered or Non-Covered?
Issue of fact as to whether boat sank due to non-covered “wear and tear” or covered catastrophic loss of bilge pumps preclude summary judgment.

5/16/05            Circular Letter 10 (2005)
New York State Insurance Department
Modification to Loss Transfer Procedures
Under Section 5105 of the Insurance Law, if at least one of the motor vehicles involved in an accident is a motor vehicle weighing more than 6,500 pounds (unloaded) or is a motor vehicle used principally for the transportation of persons or property for hire, a No-fault insurer (including a self-insurer and MVAIC) or a compensation provider (as defined in NYIL Section 5102(l)) has a right to recover No-fault first party benefits that it has paid from the insurer of a party determined to be liable for damages.  That recovery is accomplished through a “loss-transfer” proceeding administered by Arbitration Forums, Inc.  The NYS Insurance Department has announced some regulatory changes to the rules which apply to these intercompany arbitrations, including:

  • All applications and responses MUST be accompanied by a completed Contentions Sheet that lists all evidence that will be presented for consideration by the arbitrator(s);
  • Arbitration shall be requested no later than three (3) years from the date that the claim payment is made.
  • The minimum proof of damages necessary to support an Applicant’s case is a computer printout or a ledger of benefits paid, kept in the regular course of business. The ledger must include the name of the payee, amount paid, date of service, and date paid. Additional proof may be needed if damages are contested.

 

 

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.

 

 


6/1/05              BCS Insurance Co. v. Wellmark, Inc.

Seventh Circuit Court of Appeals

Relation Back Clause in Insurance Policy Does Not Apply to Questions of Arbitrability, Only To the Merits of Claims
BCS Insurance Company sought an order compelling arbitration of a dispute with its insured, Wellmark, Inc., pursuant to an arbitration clause in its insurance policy that provides for arbitration of disputes “at the option of the . . . Insured.” Wellmark, the insured, opted to litigate rather than arbitrate, as was its right under the plain language of the arbitration clause. BCS wished to arbitrate, however, and to avoid Wellmark’s exercise of the litigation option invoked the “relation back” provision of the policy, which stated that claims arising out of the same or interrelated wrongful acts are treated as a single claim deemed made at the time the earliest claim was made. BCS contended that Wellmark’s claim is related to certain other claims made against earlier policies BCS issued to Wellmark. The earlier policies contained mandatory rather than optional arbitration clauses. Therefore, BCS argued, the “relation back” clause operated to bring this claim within the mandatory arbitration provision of the earliest policy. The Court of Appeals rejected reading of the policy. Noting that the “relation back” clause of the policy may or may not operate to limit the availability or scope of coverage for this claim, the Court stated that such a question is on the merits of the claim, not its arbitrability. The Court held that the arbitration clause of the policy in question unambiguously allows but does not require arbitration.

 

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

 


5/30/05            Owners Insurance Co. v. Clayton

South
Carolina Supreme Court

Employment-Related Practices Exclusion Did Not Preclude Insurance Coverage
Clayton, former manager of a Lands Inn motel, obtained the underlying tort judgment when Lands Inn fired Clayton for allegedly stealing and embezzling funds. After a criminal charge against Clayton was nol prossed, she filed a civil suit against Lands Inn for malicious prosecution, slander, and negligence. The jury returned a general verdict of $1.25 million, of which $500,000 was for compensatory damages and $750,000 for punitive damages. Owners provided Commercial General Liability coverage to Lands Inn. It defended the Clayton suit under a full reservation of rights, but prior to that trial commenced this declaratory judgment suit. Owners now appeals a circuit court order granting Lands Inn summary judgment on the coverage issue and holding Lands Inn entitled to indemnification for the $1.25 million Clayton verdict. Owners asserts the circuit court erred in finding that coverage was not precluded by the policy’s employment-related practices (ERP) exclusion, and that several other statements in the order are incorrect. We hold that the ERP exclusion does not apply, and that the inaccuracies in the order have not prejudiced Owners. The court affirmed, concluding that the trial judge did not err in finding the policy language ambiguous or in holding the ERP exclusion did not apply to the defamation claim and therefore Owners must indemnify Lands Inn for $1.25 million when the policy limit is $1 million. The trial court’s order and judgment form did not contain other inaccuracies.

 

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


5/27/05            Private Bank & Trust v. Progressive Casualty Ins. Co.

United States District Court for the Northern District of Illinois, Eastern Division

Insurance Policy Interpreted Literally and Rules of Construction Did Not Apply to Broaden Coverage
This is an insurance coverage dispute arising from a fraud that caused a loss to the Private Bank & Trust Company. A man using a false identity, phony corporate documents, and stolen checks opened a corporate account at Private Bank’s branch office in Wilmette, Illinois. Two days later, when the funds were cleared for use, he withdrew $400,200 from the account by telephone. The fraud was eventually discovered, and the bank filed a claim with its insurer, Progressive Casualty Insurance Company. Progressive denied the claim, Private Bank sued, and the district court granted summary judgment in favor of the insurance company. The financial institution bond at issue in this case covers losses “resulting directly from theft, false pretenses. . . or . . . larceny committed by a person present in an office or on the premises of the Insured.” The perpetrator of the fraud in this case was not present in the bank at the time he made the telephone withdrawal which caused the bank’s loss. The bond’s fraud coverage is expressly limited to losses that occur when the perpetrator of the fraud is present on the premises of the insured. The court declined to adopt a rule of construction that would expand the bond’s “on premises” fraud coverage to include losses from off-premises transactions that are preceded by on-premises fraudulent acts. Because the perpetrator of the fraud against Private Bank was not on the premises of the bank at the time he made the telephonic withdrawal that caused the bank’s loss, the “on premises” coverage of the financial institution bond does not apply. The district court properly granted summary judgment to Progressive.

 

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

 

 

 

 

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Circular Letter No. 10 (2005)
May 16, 2005

 

       

TO:  All insurers authorized to write motor vehicle insurance in New York State or workers’ compensation insurance providing benefits in lieu of first party benefits under No-fault; motor vehicle self-insurers; and the Motor Vehicle Accident Indemnification Corporation (MVAIC)

       

RE: PIP (No-fault) inter-company loss transfer procedures

       

 

STATUTORY REFERENCE:  NYIL Sections 308 and 5105, Section 65-4.11 of Regulation No. 68-D (11 NYCRR 65-4)

        

Pursuant to Section 5105 of the Insurance Law, if at least one of the motor vehicles involved in an accident is a motor vehicle weighing more than 6,500 pounds (unloaded) or is a motor vehicle used principally for the transportation of persons or property for hire, a No-fault insurer (including a self-insurer and MVAIC) or a compensation provider (as defined in NYIL Section 5102(l)) has a right to recover No-fault first party benefits that it has paid from the insurer of a party determined to be liable for damages. (This right does not apply to an insurer of passengers of a bus or school bus except in limited circumstances.)

If there is a dispute with respect to a claim arising pursuant to Section 5105, the sole remedy of any insurer or compensation provider is via the submission of the controversy to a mandatory arbitration program. This No-fault inter-company loss transfer arbitration program is administered by the Superintendent’s designee, Arbitration Forums Inc. (AF).

Approval of new No-fault inter-company loss transfer procedures

The purpose of this Circular Letter is to advise that, in accordance with Section 65-4.11 of Regulation No. 68-D (11 NYCRR 65-4), the Superintendent has approved revised procedures submitted by AF, in consultation with the No-fault Inter-Company Loss Transfer Advisory Committee, for the administration of the No-fault inter-company loss transfer arbitration program. The revised procedures include several significant changes. For example:

· All applications and responses MUST be accompanied by a completed Contentions Sheet that lists all evidence that will be presented for consideration by the arbitrator(s).

· Arbitration shall be requested no later than three (3) years from the date that the claim payment is made.

· The minimum proof of damages necessary to support an Applicant’s case is a computer printout or a ledger of benefits paid, kept in the regular course of business. The ledger must include the name of the payee, amount paid, date of service, and date paid. Additional proof may be needed if damages are contested.

The complete NY PIP Arbitration Procedures applicable to use in the arbitration forum are accessible at AF’s website, www.arbfile.org, under the Forum’s tab.

Arbitrator participation in No-fault inter-company loss transfer arbitration

Pursuant to Section 65-4.11 of the Regulation, the Administrator appoints members of local arbitration panels from full-time salaried representatives of insurers on the basis of their experience and qualification. Accordingly, each No-fault insurer, self-insurer, compensation provider, and MVAIC should designate to AF at least one qualified full-time salaried representative in each jurisdiction where the company participates in No-fault inter-company loss transfer arbitration who will be available for appointment by AF as an arbitrator in this forum. In addition, each user of this forum should designate at least one individual who will be responsible for resolving any case scheduling or administrative issues within this forum.

Arbitrator designee(s) and contact person(s)

Within ten business days of receipt of this Circular Letter, please provide in writing the name, title, address, telephone number and e-mail address of your arbitrator designee(s) along with that designee’s resume outlining his or her qualifications, as well as the name and phone number of the individual(s) designated to act as the contact person(s) for administrative purposes, to:

Ms. Toni Ruocchio, Regional Manager
Arbitration Forums Inc.
867 Church Street – Union # 6
Bohemia, New York 11716

Phone: 631-567-1431; Fax: 631-567-1560; e-mail: [email protected]

If you have any questions concerning the content of this Circular Letter, contact Isaac Zamdas, Principal Insurance Examiner, at 212-480-5586, or via e-mail Isaac ZamdasIsaac Zamdas.

Pryor v. New York Property Insurance Underwriting Association

Judgment, Supreme Court, New York County (Paula J. Omansky, J.), entered February 25, 2004, dismissing the complaint pursuant to an order, same court and Justice, entered February 25, 2004, which, in an action by a limited partnership's bankruptcy trustee and others to recover on a policy of fire insurance, insofar as challenged, granted defendant insurer's motion for summary judgment dismissing the complaint based on the failure of one Charles Cooper, now deceased, to cooperate in defendant's investigation of the fire, unanimously affirmed, with costs. Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

It appears that the limited partnership (Apparel) was formed by XYZ Corporation, as general partner, and Cliftex Corporation and Charles Cooper, as limited partners. Profits and losses were to be allocated 1% to XYZ, 66% to Cliftex, and 33% to Cooper. Cooper was also XYZ's president. The action is brought by Apparel's bankruptcy trustee, Cliftex's bankruptcy trustee, and XYZ. We reject plaintiffs' argument that they cannot be held responsible for Cooper's ultra vires failure to cooperate with defendant's investigation of the fire. The argument simply does not apply to XYZ, which was controlled by Cooper, and will not be heard from Apparel or Cliftex, neither of which is a proper party plaintiff; the only proper party plaintiff is XYZ, the partnership's general partner (see Millard v Newmark & Co., 24 AD2d 333, 336-337 [1966]). Nor does an issue of fact exist as to the willfulness of Cooper's failure to submit to an examination under oath. Correspondence in the record establishes that Cooper was persistently resistant in scheduling the examination, and cancelled two scheduled examinations on short [*2]notice without reasonable excuses (see Levy v Chubb Ins., 240 AD2d 336 [1997]). We have considered plaintiffs' other arguments and find them unavailing.

Caristo v. Standard Fire Insurance Company


            In an action to recover benefits under an insurance policy, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Davis, J.), dated August 6, 2004, which granted the defendant's motion for summary judgment dismissing the complaint and denied his cross motion for summary judgment, and (2) from so much of an order of the same court dated November 10, 2004, as denied that branch of his motion which was for leave to renew the defendant's motion for summary judgment and his cross motion for summary judgment.

ORDERED that the order dated August 6, 2004, is modified, on the law, by deleting the provision thereof granting the defendant's motion for summary judgment and substituting therefor a provision denying the defendant's motion; as so modified, the order is affirmed, and the complaint is reinstated; and it is further,

ORDERED that the appeal from so much of the order dated November 10, 2004, as denied that branch of the plaintiff's motion which was for leave to renew the defendant's motion for summary judgment is dismissed as academic; and it is further,

ORDERED that the order dated November 10, 2004, is affirmed insofar as reviewed; and it is further,

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

The plaintiff is the owner of a Sea Ray boat insured under a policy issued by the [*2]defendant. The plaintiff submitted a claim under the policy after the hull of the boat filled with water and became partially submerged, resulting in a total loss. After inspections, the defendant's experts concluded that water entered the hull due to worn packing around the starboard propeller shaft and wear on the shaft itself. Deeming these routine maintenance items, the defendant denied coverage based on a policy exclusion for a "loss or damages resulting from wear and tear."

The plaintiff commenced this action to recover under the policy. During his deposition, the plaintiff testified that it was typical of his boat specifically, and of his brand of boat in general, that a certain amount of water leaked into the hull from around the propeller shafts. However, the water was always evacuated by the boat's two electric bilge pumps. Further, he testified that on the day before the loss, he was alerted to the presence of water in the hull and discovered that the bilge pumps were not working because the main circuit breaker on the boat had "popped" and could not be reset. The plaintiff scheduled a mechanic, but the mechanic did not arrive until after the boat sank.

The defendant moved for summary judgment dismissing the complaint, relying on the opinion of its experts that the loss resulted from wear and tear, i.e., the worn packing and propeller shaft. The plaintiff cross-moved for summary judgment, arguing that the loss resulted from the failure of the bilge pumps and the failure of his mechanic to arrive as scheduled. The Supreme Court granted the defendant's motion and denied the plaintiff's cross motion. The plaintiff moved, inter alia, for leave to renew. In support of renewal, the plaintiff submitted the affidavit of a boat mechanic and Sea Ray dealer who opined, inter alia, that the electric bilge pumps on the boat would have kept the boat afloat even if all packing had been removed from around both propeller shafts. The Supreme Court denied renewal.

In support of its motion for summary judgment, the defendant failed to address what role, if any, the loss of the electric bilge pumps played in the claimed loss. Thus, the defendant failed to establish, prima facie, that the loss resulted from the worn packing and propeller shaft, the sole ground for its disclaimer (see Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008, 1010-1011; Brown v St. Nicholas Ins. Co., 61 NY 332, 337-338; Congregation Beth Torah v Graphic Arts Mut. Ins. Co., 293 AD2d 441, 442; Cresthill Indus. v Providence Washington Ins. Co., 53 AD2d 488, 498-499; Couch, Cyclopedia of Insurance Law [2nd ed.], Vol. 18, § 137:4 ). Rather, this remains a question of fact which prevented granting summary judgment to either party.

In light of our determination, the denial of that branch of the plaintiff's motion which was for leave to renew the defendant's motion for summary judgment has been rendered academic.

Donato v, ELRAC, Inc., et al.


In an action to recover damages for personal injuries, etc., the defendant Loni Holm appeals, as limited by her brief, from so much of an order of the Supreme Court, Orange County (Rosenwasser, J.), dated February 6, 2004, as denied that branch of her cross motion which was for summary judgment dismissing the complaint insofar as asserted against her, and the defendants ELRAC, Inc., ELRAC, Inc., d/b/a Enterprise Rent-A-Car, Enterprise Rent-A-Car, and Enterprise Rent-A-Car Company separately appeal, as limited by their brief, from so much of the same order as denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

On January 27, 2002, at approximately 3:30 A.M., the 13-year-old defendant, [*2]Jonathan Holm, was operating a vehicle on Old Tuxedo Road in Orange County. The injured infant plaintiff was a passenger in the vehicle. The driver lost control of the vehicle while speeding and struck approximately five trees. The vehicle involved in the accident had been rented by the infant defendant's mother, the defendant Loni Holm, approximately four days before the accident.

Thereafter, the plaintiffs commenced this action against the infant defendant, Jonathan Holm, Loni Holm, and ELRAC, Inc., ELRAC, Inc., d/b/a Enterprise Rent-A-Car, Enterprise Rent-A-Car, and Enterprise Rent-A-Car Company (hereinafter collectively ELRAC), alleging that the infant defendant's negligent operation of the vehicle caused the infant plaintiff's injuries and that Loni Holm and ELRAC were responsible for those injuries pursuant to Vehicle and Traffic Law § 388. The Supreme Court granted those branches of the cross motions of Loni Holm and ELRAC which were for leave to amend their answers to assert the defense of the absence of permissive use, but denied those branches of their cross motions which were for summary judgment because it was not appropriate to grant summary judgment without permitting the plaintiffs to proceed with discovery. We affirm.

In opposition to those branches of the cross motions which were for summary judgment, the plaintiffs offered no evidence in admissible form regarding whether the infant defendant had permission to use the rental vehicle. However, before any pretrial disclosure, such information would be exclusively within the knowledge of the defendants, and thus, summary judgment was inappropriate at this time (see CPLR 3212[f]; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 194; Procter & Gamble Distr. Co. v Lawrence Am. Field Warehousing Corp., 16 NY2d 344, 362; Firesearch Corp. v Micro Computer Controls Corp., 240 AD2d 365, 366; Grumman Aerospace Corp. v Rice, 199 AD2d 365, 366; Silverman v Arrow Linen Supply Co., 131 AD2d 459, 460). Moreover, questions of credibility on motions for summary judgment should not be determined by affidavit, but rather, the movant's version should be subjected to cross-examination (see Frame v Mack Markowitz, Inc., 125 AD2d 442, 443).

Loni Holm failed to establish, prima facie, that the rental agreement was not for a period of greater than 30 days (see Vehicle and Traffic Law § 128; Dairylea Coop. v Rossal, 64 NY2d 1, 10; Motor Veh. Acc. Indem. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260, 265).

In light of our determination, we need not reach the parties' remaining contentions.
COZIER, J.P., LUCIANO, CRANE and SKELOS, JJ., concur.

ENTER:

Hritz v. Saco

 

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered October 29, 2004, dismissing the complaint and all cross claims against Great Northern Insurance Company and awarding $108,000 on its counterclaim against plaintiffs for recovery of an advance for living expenses during the pendency of the claim, and bringing up for review an order, same court and Justice, entered October 6, 2004, which granted defendant-respondent's motion for summary judgment; order, same court and Justice, entered December 7, 2004, which, to the extent appealable, denied plaintiffs' motion to renew; and order, same court and Justice, entered February 16, 2005, granting leave to renew and adhering to the initial ruling, unanimously affirmed, without costs. Appeal from the aforesaid order entered October 6, 2004 unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The Connecticut home purchased by plaintiffs was insured against the risk of physical loss by defendant Great Northern, but the policy clearly and unambiguously excluded "any loss that is contributed to, made worse by, or in any way results from
. . . fungi [or] mold." Mold and mycotoxins arising therefrom were discovered during renovations which allegedly caused plaintiff Mary Elizabeth Hritz to incur severe allergic reactions. After inspection by mold specialists, plaintiffs razed the house rather then attempt to decontaminate it. During the investigation of the claim, Great Northern advanced plaintiffs extra living expenses with an agreement to repay such amounts should it be determined that their claim was not covered. Great Northern ultimately denied coverage on the grounds that leaks and mold growth occurred prior to commencement of coverage, the loss was not fortuitous, and the policy excluded loss caused by "wear and tear, gradual deterioration, . . . fungi, . . . mold, . . . dry or wet rot." [*2]

Besides suing the sellers and broker based on allegations that water intrusion and moisture damage existing at the time of the sale caused the mold condition, plaintiffs also sued Great Northern to recover the policy maximum for complete loss of their home. In summarily dismissing the action as to Great Northern, the court found that mold was specifically excluded under the policy, and mycotoxins were excluded as caused by mold.

Great Northern met its burden of proving that the mold exclusion applied, and the burden then shifted to plaintiffs to prove the applicability of an exception to the exclusion (see Northville Indus. Corp. v National Union Fire Ins. Co., 89 NY2d 621, 634 [1997]; Buell Indus. v Greater N.Y. Mut. Ins. Co., 259 Conn 527, 550-551, 791 A2d 489, 504 [2002]).

Plaintiffs failed to meet their burden of demonstrating that mold was not the efficient proximate cause of the loss (see Frontis v Milwaukee Ins. Co., 156 Conn 492, 499, 242 A2d 749, 753 [1968]). While the presence of dampness and moisture can contribute to the development of mold, the mere fact that water or moisture, arising under ambient conditions over time, contributes to the loss does not make it the efficient proximate cause (see e.g. 40 Gardenville v Travelers Prop. Cas. Co. of Am., 2005 US Dist LEXIS 4406, 2005 WL 327108 [WD NY]). Nor was there any showing that the loss was fortuitous or ensued from something entirely different from the damage that naturally flowed from
perils associated with mold contamination (see Sansone v Nationwide Mut. Fire Ins. Co., 47 Conn Supp 35, 770 A2d 500 [1999], affd 62 Conn App 526, 771 A2d 243 [2001]).

Since the claim was outside the policy coverage, summary judgment was properly granted on Great Northern's counterclaim for repayment of the living expense advances. We have considered plaintiffs' remaining arguments and find them without merit.

M-1783Hritz, et al. v Saco, etc., et al.

Motion seeking stay denied.

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

ENTERED: MAY 26, 2005

CLERK

 

Barrett v. Jeannot


            In an action to recover damages for personal injuries, the defendants David Jeannot and Menz Smith appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 2, 2004, as granted the plaintiff's motion for leave to reargue their prior motion 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), which was granted in an order of the same court dated February 9, 2004, and, upon reargument, vacated the prior order, denied their motion, and reinstated the complaint insofar as asserted against them, and the defendant Carlos Isaac separately appeals from the same order. Application by the defendant Carl Isaac for leave to withdraw his appeal.

ORDERED that the application is granted and the appeal by the defendant Carlos Isaac is dismissed as withdrawn; and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendants David Jeannot and Menz Smith; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendants [*2]David Jeannot and Menz Smith.

The plaintiff made a satisfactory demonstration of the manner in which the Supreme Court overlooked or misapprehended matters of fact or law in rendering its original decision. Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to reargue (see CPLR 2221[d][2]).

Moreover, upon reargument, the Supreme Court properly denied the motion of the defendants David Jeannot and Menz Smith (hereinafter the defendants) for summary judgment dismissing the complaint insofar as asserted against them. The affirmations of the defendants' medical experts were insufficient to establish a prima facie showing that the plaintiff did not sustain a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The defendants' examining orthopedist failed to "'set forth the objective test or tests performed' supporting [his] claims that there was no limitation of range of motion" (Black v Robinson, 305 AD2d 438; quoting Zavala v DeSantis, 1 AD3d 354; see Gamberg v Romeo, 289 AD2d 525; Junco v Ranzi, 288 AD2d 440), and the defendants' examining neurologist offered no opinion as to the limitations in functioning alleged by the plaintiff. Under these circumstances, we need not consider the sufficiency or insufficiency of the plaintiff's opposition papers (see Coscia v 938 Trading Corp., 283 AD2d 538; 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

Derby v Menchenfriend


            In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated August 13, 2004, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and failed to dispose of her cross motion on the merits.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Dutchess County, to determine the plaintiff's cross motion for partial summary judgment on the issue of liability.

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury (see Insurance Law § 5102[d]) as a result of the accident (see Berkowitz v Decker Transport Co., 5 AD3d 712). The defendant's medical expert acknowledged that the accident exacerbated the plaintiff's neck and back symptoms (see Trunk v Spross, 306 AD2d 463). Moreover, the defendant's medical expert examined the plaintiff and did not indicate that she exhibited full range of motion in her cervical and lumbar spines (cf. Kearse v New York City Tr. Auth. 16 AD3d 45).

The plaintiff cross-moved for partial summary judgment on the issue of liability. The [*2]Supreme Court noted that the relief requested in the cross motion was "moot," in light of its determination to grant the defendant's motion to dismiss. Although the plaintiff improperly raised the issue of the Supreme Court's failure to dispose of her cross motion on the merits for the first time in her reply papers (see Simon v Mehryari, 16 AD3d 664 [issue may not be raised for first time in reply brief]), the matter must be remitted to the Supreme Court to determine her cross motion on the merits.
PRUDENTI, P.J., SCHMIDT, SANTUCCI, LUCIANO and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Hegarty v. Ballee

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County (McCarty, J.), entered April 7, 2004, which, upon an order of the same court dated November 1, 2001, granting the plaintiff's motion for leave to enter judgment against him upon his default in answering and appearing, and upon an order of the same court entered June 24, 2003, denying his motion to vacate his default, is in favor of the plaintiff and against him in the principal amount of $700,000.

ORDERED that the judgment is affirmed, with costs.

Although the judgment was entered upon the defendant's default, the defendant may obtain review of "matters which were the subject of contest below" (James v Powell, 19 NY2d 249, 256, n3). Here, the order entered June 24, 2003, denied the defendant's motion to vacate, and the defendant also appeared in partial opposition to that branch of the plaintiff's motion which was for leave to enter judgment against the defendant upon the defendant's default in answering and appearing which directed the purchase of an annuity contract that did not expressly terminate upon the defendant's death. Thus, appellate review of the order entered June 24, 2003, and of so much of the judgment as directed the defendant and his insurance carrier to purchase an annuity contract is not precluded. [*2]

A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must proffer both a reasonable excuse for the default and a meritorious defense to the action (see Gray v B.R. Trucking Co., 59 NY2d 649, 650; Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488). "The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor" (MacMarty, Inc. v Scheller, 201 AD2d 706, 707).

The defendant failed to demonstrate a reasonable excuse for his default. "An insurance carrier's delay is insufficient to establish a reasonable excuse for a default" (Juseinoski v Board of Educ. of City of New York, 15 AD3d 353; see Campbell v Ghafoor, 8 AD3d 316, 317; Weinberger v Judlau Contr., 2 AD3d 631; Franklin v Williams, 2 AD3d 400; Kaplinsky v Mazor, 307 AD2d 916). Specifically, an insurance carrier's delay in determining coverage, as was alleged here, is not a sufficient excuse to vacate a default (see Ennis v Lema, 305 AD2d 632, 633). As the defendant failed to demonstrate a reasonable excuse for his default, we need not address whether he established the existence of a meritorious defense (see Westchester County Med. Ctr. v Allstate Ins. Co., supra at 489).

Contrary to the defendant's contention, the Supreme Court properly omitted from the judgment language stating that the annuity contract in favor of the plaintiff would terminate on the plaintiff's death. Indeed, "there is no need for the order to provide for termination of certain portions of the award upon plaintiff's death, for CPLR 5045(a) terminates the judgment debtor's liability for those portions of the award upon the judgment creditor's death" (Reed v Harter Chair Corp., 196 AD2d 123, 127).

The defendant's remaining reviewable contention does not require reversal.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Vallejo v. Builders for the Family Youth

In an action to recover damages for personal injuries, etc., the defendants Builders for the Family Youth, Diocese of Brooklyn, Inc., and Donsia F. King appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated July 7, 2004, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs John Vallejo, Jr., and Vanessa Vallejo on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), and the defendant Teofilio P. Rendon separately appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him by the plaintiffs John Vallejo, Jr., and Vanessa Vallejo on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs to the appellants, the motion and the cross motion are granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The defendants made a prima facie showing that neither of the infant plaintiffs John [*2]Vallejo, Jr., and Vanessa Vallejo (hereinafter the plaintiffs) 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). In opposition, the plaintiffs' treating physician failed to provide any explanation regarding the nearly 4½-year gap between the date of the plaintiffs' initial treatments and the date of their subsequent examinations (see Pommells v Perez, NY3d [Apr. 28, 2005]; Mendoza v Whitmire, 6 AD3d 675; Jiminez v Kambli, 272 AD2d 581, 582; Smith v Askew, 264 AD2d 834). In addition, the plaintiffs' treating physician failed to set forth the objective tests he performed to arrive at his conclusions regarding the plaintiffs' alleged limitations of motion (see Kauderer v Penta, 261 AD2d 365, 366). Further, the plaintiffs' treating physician impermissibly relied upon unsworn medical findings of other doctors (see Mahoney v Zerillo, 6 AD3d 403; Jiminez v Kambli, supra at 582). Accordingly, the plaintiffs failed to raise a triable issue of fact, and the Supreme Court should have granted summary judgment in favor of the appellants.
ADAMS, J.P., COZIER, RITTER and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Great Northern Insurance Company v. Interior Construction Corp.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered April 29, 2004, which denied the motion of defendant New Water Street Corporation for summary judgment on its cross claim for contractual indemnification against defendant The Depository Trust & Clearing Corporation, unanimously reversed, on the law, without costs, and the motion granted.

While lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy (General Obligations Law § 5-321), where, as here, sophisticated parties negotiating at arm's length have agreed to "allocat[e] the risk of liability to third parties between themselves, essentially through the employment of insurance," that agreement is enforceable (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 161 [1977]; Parra v Ardmore Mgt. Co., 258 AD2d 267, 269 [1999], lv denied 93 NY2d 805 [1999]; Ameri v Diane Young Skincare Ctr., 170 AD2d 280, 281-282 [1991], lv denied 81 NY2d 709 [1993]).

The instant lease reflects "the 'unmistakable intent of the parties'" (Hogeland, 42 NY2d at 159, quoting Levine v Shell Oil Co., 28 NY2d 205, 212 [1971]) that Depository indemnify New Water for the latter's own negligence, except as to claims arising from a condition created by New Water or from any accident, injury or damage caused solely by New Water's negligence. The lease further requires Depository to maintain insurance and to name New Water as an additional insured on its comprehensive general liability policy, and requires both parties to include mutual waivers of subrogation in their respective policies (see Hogeland, 42 NY2d at 161; Morel v City of New York, 192 AD2d 428, 429 [1993]). Since it was stipulated that New Water's negligence was not the sole cause of the damage, New Water is entitled to
contractual indemnification under the lease. [*2]

The Decision and Order of this Court entered herein on February 22, 2005 is hereby recalled and vacated (see M-1278 decided simultaneously herewith).

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

 

 

 

 

 

Pennsylvania Lumbermans Mutual Insurance Company v.
D & Sons Construction Corp



In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant D & Sons Construction Corporation in an underlying personal injury action entitled Majlinger v Casino Contracting Corp., pending in the Supreme Court, Richmond County, under Index No. 12301/01, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Richmond County (Gigante, J.), dated June 4, 2004, which denied its motion for summary judgment and, upon searching the record, awarded summary judgment to the defendant D & Sons Construction Corp. and declared that it is obligated to defend and indemnify that defendant in the underlying action.

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

On January 11, 2001, Stanislaw Majlinger sustained personal injuries while working for a subcontractor of the defendant D & Sons Construction Corp. (hereinafter D & Sons). In [*2]September 2001 Majlinger commenced the underlying personal injury action to recover damages against, among others, D & Sons. The plaintiff, D & Sons' insurance carrier, first became aware of Majlinger's accident on November 20, 2001, when it received a copy of the answer filed by a codefendant in the underlying action. The plaintiff thereafter retained an investigator to determine when D & Sons first learned of Majlinger's accident. On December 11, 2001, the investigator interviewed D & Sons' project supervisor, Frank Percy, who stated that he first learned of the accident on January 13, 2001, or January 14, 2001, but elected not to notify the plaintiff because Majlinger's employer had its own insurance coverage. D & Sons did not dispute that, upon learning of the accident at that time, it failed to notify the plaintiff. On December 19, 2001, the investigator advised the plaintiff by telephone of the results of its investigation. Nevertheless, the plaintiff did not, in effect, disclaim coverage until 47 days later, on February 4, 2002, when it commenced this action for a judgment declaring that it is not obligated to defend or indemnify D & Sons in connection with the underlying action (see Generali-US Branch v Rothschild, 295 AD2d 236, 237-238).

The plaintiff subsequently moved for summary judgment based upon D & Sons' failure to provide it with notice of Majlinger's accident. The Supreme Court denied the plaintiff's motion, and, upon searching the record, awarded summary judgment to D & Sons and declared that the plaintiff is obligated to defend and indemnify D & Sons in the underlying action. We affirm.

Where, as here, the contract of primary insurance requires the insured to notify the carrier "as soon as practicable" of an occurrence which may result in a claim, "the absence of timely notice of an occurrence is a failure to comply with a condition precedent which, as a matter of law, vitiates the contract" (Argo Corp. v Greater NY Mut. Ins. Co., 4 NY3d 332). However, a carrier waives its affirmative defense of late notice if it fails to disclaim coverage "as soon as is reasonably possible" (Insurance Law § 3420[d]) after it "first learns of the grounds for disclaimer of liability or denial of coverage" (Matter of Allcity Ins. Co., 78 NY2d 1054, 1056; accord First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69; New York Cent. Mut. Fire Ins. Co. v Majid, 5 AD3d 447, 448). "It is the responsibility of the insurer to explain its delay, and an unsatisfactory explanation will render the delay unreasonable as a matter of law" (Moore v Ewing, 9 AD3d 484, 488; see Republic Franklin Ins. Co. v Pistilli, 16 AD3d 477).

Here, at the very latest, the plaintiff first learned of the grounds for disclaimer on December 19, 2001, when its investigator informed it, in no uncertain terms, that D & Sons had been aware of Majlinger's accident as early as January 13, 2001, or January 14, 2001, but elected not to notify it. Instead of promptly disclaiming coverage, however, the plaintiff chose first to consult with counsel, ultimately filing this action some 47 days later. Under these circumstances, the Supreme Court correctly found that the plaintiff's delay in disclaiming coverage was unexcused and unreasonable as a matter of law (see First Fin. Ins. Co. v Jetco Contr. Corp., supra, 69-70; Moore v Ewing, supra, at 488; Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507; cf. New York Cent. Mut. Fire Ins. Co v Majid, supra).

The plaintiff's remaining contentions are without merit.
SCHMIDT, J.P., S. MILLER, KRAUSMAN and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

82-04 Lefferts Tenants, Corp. v. Federal Insurance Company


            Appeal by the Federal Insurance Company from (1) so much of an order of the Supreme Court, Queens County (Glover, J.), dated January 9, 2004, as, upon severing its cross claim for judgment declaring that it is obligated to defend and indemnify 82-04 Lefferts Tenants, Corp. in a proceeding entitled Matter of Jain v 82-04 Lefferts Tenants Corp., pending in the Supreme Court, Queens County, under Index No. 11744/97, denied that branch of its motion which was for summary judgment, and (2) an order of the same court dated February 4, 2004, which, inter alia, amended the caption of the action to designate 82-04 Lefferts Tenants, Corp. as the plaintiff and it as the defendant.

ORDERED that the order dated January 9, 2004, is reversed insofar as appealed from, on the law, that branch of the appellant's motion which was for summary judgment is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the appellant is not obligated to defend and indemnify 82-04 Lefferts Tenants, Corp. in the proceeding entitled Matter of Jain v 82-04 Lefferts Tenants Corp., pending in the Supreme Court, Queens County, under Index No. 11744/97; and it is further,

ORDERED that the appeal from the order dated February 4, 2004, is dismissed as [*2]academic in light of the determination of the appeal from the order dated January 9, 2004; and it is further,

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

In support of its motion for summary judgment, the appellant made a prima facie showing of entitlement to judgment as a matter of law. It demonstrated that 82-04 Lefferts Tenants, Corp. (hereinafter Lefferts) sought a defense and indemnification with respect to litigation which was substantially the same as other, pending litigation of which it had knowledge prior to the effective date of the insurance policy at issue in this case. Thus, the appellant established that the litigation was excluded from coverage pursuant to a policy endorsement (see Alvarez v Prospect Hosp., 68 NY2d 320; Zunenshine v Executive Risk Indem., 1998 WL 483475, 1998 US Dist LEXIS 12699 [SD NY Aug. 17, 1998], affd 182 F3d 902; LaValley v Virginia Sur. Co., Inc., 85 F Supp 2d 740 [ND Ohio 2000]). In opposition to the motion, Lefferts failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of the appellant's motion which was for summary judgment.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the appellant is not obligated to defend and indemnify Lefferts in the proceeding entitled Matter of Jain v 82-04 Lefferts Tenants Corp., pending in the Supreme Court, Queens County, under Index No. 11744/97 (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).
H. MILLER, J.P., RITTER, MASTRO and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

State Farm Mutual Automobile Insurance Company v. Langan

 

In an action, inter alia, for a judgment declaring the rights of the parties under an insurance contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered January 30, 2004, as denied its motion for summary judgment dismissing the defendant's counterclaims and for a declaration that it was not obligated to provide insurance coverage for the injuries sustained by Neil Conrad Spicehandler as the result of a hit-and-run incident on February 12, 2002, and the defendant cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion, inter alia, for summary judgment declaring that the plaintiff was obligated to provide insurance coverage for the injuries sustained by Neil Conrad Spicehandler as the result of a hit-and-run incident on February 12, 2002, and for summary judgment on his third counterclaim.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's second counterclaim and those portions of the defendant's first and third counterclaims which seek to recover damages for emotional distress and which request punitive damages and substituting therefor a provision granting those branches of the plaintiff's motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff. [*2]

On February 12, 2002, Neil Conrad Spicehandler was struck and injured by a motor vehicle allegedly driven by Ronald Popadich. Spicehandler subsequently died as a result of his injuries. The administrator of Spicehandler's estate, the defendant, John Robert Langan, sought to recover, inter alia, uninsured motorist benefits pursuant to an automobile liability policy issued by the plaintiff, State Farm Mutual Automobile Insurance Company (hereinafter State Farm). After an investigation, State Farm disclaimed coverage under its policy on the ground that Spicehandler's injuries were the result of intentional conduct and not the result of an accident as required by the policy. Thereafter, State Farm commenced the instant action, inter alia, for a judgment declaring that it was not obligated to provide the coverage sought by the defendant.

Contrary to the defendant's contention, if Spicehandler's injuries and death were the result of an intentional assault or an intentional homicide, then they were not the result of an accident, and the incident is not covered under the applicable policy (see Matter of Progressive Northwestern Ins. Co. v Van Dina, 282 AD2d 680; Matter of Aetna Cas. & Sur. Co. v Perry, 220 AD2d 497, 498; McCarthy v MVAIC, 16 AD2d 35, affd 12 NY2d 922). However, in support of its motion for summary judgment, State Farm failed to demonstrate, prima facie, that Popadich intentionally struck Spicehandler. State Farm relied upon mere hearsay and failed to submit admissible proof of the incident's intentional nature (see P&N Tiffany Props. v Maron, 16 AD3d 395; Young v Fleary, 226 AD2d 454, 455; Borough Hall-Oxford Tobacco Corp. v Central Office Alarm Co., 35 AD2d 523; Greenberg v Prudential Ins. Co., 266 App Div 685; Welz v Commercial Travelers Mut. Acc. Assn., 266 App Div 668). Accordingly, the Supreme Court properly denied that branch of State Farm's motion which was for summary judgment declaring that the incident was not covered under the subject policy (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562).

Similarly, the Supreme Court properly denied that branch of the defendant's cross motion which was for summary judgment declaring that the plaintiff was obligated to provide insurance coverage for the injuries sustained by Spicehandler as the result of a hit-and-run incident on February 12, 2002, because it was not supported by admissible evidence (see Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra). The defendant relied on a police report to establish the accidental nature of the incident, but there is no evidence that the reporting officer witnessed the incident or that the eyewitness referred to in the report had a business duty to report the facts to the officer (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396; Bendik v Dybowski, 227 AD2d 228). Thus, the portion of the police report relied upon by the defendant constituted inadmissible hearsay (see Almestica v Colon, 304 AD2d 508; Holliday v Hudson Armored Car & Courier Serv., supra; Coughlin v Bartnick, 293 AD2d 509, 511; Dennis v Capital Dist. Transp. Auth., 274 AD2d 802, 803; Urbano v Plaza Materials Corp., 262 AD2d 307, 308; Gomes v Courtesy Bus Co., 251 AD2d 625, 626; Bendik v Dybowski, supra).

However, the Supreme Court erred in denying that branch of State Farm's motion which was for summary judgment dismissing the defendant's second counterclaim. The first and second counterclaims both allege that State Farm breached its insurance contract by wrongfully denying coverage. Since the second counterclaim is duplicative of the first counterclaim, it should have been dismissed (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 315-320; Hassett v New York Cent. Mut. Fire Ins. Co., 302 AD2d 886, 887; Paull v First UNUM Life Ins. Co., 295 AD2d 982, 984). In addition, the defendant's counterclaims are insufficient to warrant punitive damages and damages for emotional distress (see Rocanova v Equitable Life Assur. Socy., 83 NY2d [*3]603, 613; Hess v Nationwide Mut. Ins. Co., 273 AD2d 689, 690-691; Bread Chalet v Royal Ins. Co., 224 AD2d 650, 651; Warhoftig v Allstate Ins. Co., 199 AD2d 258, 259; Kanapaska v Prudential Prop. & Cas. Ins. Co., 122 AD2d 935; Korona v State Wide Ins. Co., 122 AD2d 120, 121; Fleming v Allstate Ins. Co., 106 AD2d 426, affd 66 NY2d 838, cert denied 475 US 1096). Accordingly, the defendant's demand for such damages should have been stricken from the remaining counterclaims.

The parties' remaining contentions are without merit.
S. MILLER, J.P., GOLDSTEIN, CRANE and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

State Farm Mutual Automobile Insurance Company v. Bigler

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, Andrew Bigler appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated September 15, 2003, which granted the petition and denied his motion to set aside and vacate the award.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly determined that the declarations page of the petitioner's automobile insurance policy contained a single, combined limit of uninsured/underinsured motorists coverage. The offset provision set forth in the policy was therefore valid and enforceable (see Matter of Allstate Ins. Co. [Stolarz- N.J. Mfrs. Ins. Co.], 81 NY2d 219). Since the amount to be offset in this case was equal to the limit of coverage available under the policy, the Supreme Court properly granted the petition to confirm the arbitration award (see Matter of General Acc. Ins. Co. v Brown, 263 AD2d 542) and denied the motion.

Moreover, the inclusion on the declarations page of the policy of language which alerted the appellant to the existence of the offset and directed him to the specific endorsement where it could be found served to ameliorate any concerns that the stated limit of underinsured motorists coverage was misleading, ambiguous, or deceptive (see Matter of Selimis v General Acc. Ins., 264 AD2d 738). Indeed, the language employed was virtually identical to that required by Insurance Department regulations (see 11 NYCRR 60-2.3[a][2]). [*2]

Accordingly, the arbitrator's award was rational and not arbitrary and capricious (see CPLR 7510; Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Surety Co., 89 NY2d 214, 223; Matter of Selimis v General Acc. Ins., supra at 739).

The appellant's remaining contentions are without merit.
SCHMIDT, J.P., S. MILLER, SANTUCCI and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Suk Ching Yeung v. Rojas

            In an action to recover damages for personal injuries, the defendant Guillermo Rojas appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 15, 2004, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendants Yi Ye Zhong and Ke Xing Li separately appeal from so much of the same order as denied their motion 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).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the defendants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) from the subject accident (see Insurance Law 5102[d]; Kearse v New York City Tr. Auth.,16 AD3d 45; Meely v 4 G's Truck Renting Co., 16 AD3d 26; Paul v Trerotola, 11 AD3d 441; Grossman v Wright, 268 AD2d 79, 84).

In opposition, the plaintiff failed to present any medical proof that was [*2]contemporaneous with the accident showing any initial range of motion restrictions in her spine (see Nemchyonok v Peng Liu Ying, 2 AD3d 421; Ifrach v Neiman, 306 AD2d 380, 380-381). The report of the plaintiff's treating physician was not affirmed and thus, did not constitute competent proof of her injuries (see CPLR 2106; Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526; cf. Loadholt v New York City Tr. Auth., 12 AD3d 352; compare Kearse v New York City Tr. Auth., supra). In addition, the report of another doctor was based on an examination of the plaintiff approximately 4 years and 9 months after the accident. Under the circumstances, the Supreme Court should have granted the defendants' motions for summary judgment.
PRUDENTI, P.J., SCHMIDT, SANTUCCI, LUCIANO and SPOLZINO, JJ., concur.

 

Walker v. Village of Ossining


 In an action to recover damages for personal injuries, the defendants Village of Ossining and David M. Caputo appeal from an order of the Supreme Court, Westchester County (LaCava, J.), entered October 15, 2004, which granted the plaintiff's motion for leave to renew and reargue their prior motion 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 vacated its prior order dated June 30, 2004, granting their motion, and denied their motion.

ORDERED that the order is affirmed, with costs.

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew (see CPLR 2221[e]; Daniel Perla Assocs. v Ginsberg, 256 AD2d 303).

Further, reargument was appropriate since the appellants failed to make a prima facie showing, upon the original motion, 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). One medical report submitted [*2]by the appellants was unaffirmed and therefore inadmissible (see Gleason v Huber, 188 AD2d 581; Pagano v Kingsbury, 182 AD2d 268, 270). A second report, by an acupuncturist, who was not a medical doctor, was inadmissible since it was not in affidavit form (see CPLR 2106; Norris v Metropolitan Life Ins. Co., 116 Misc 2d 296). The remaining reports submitted by the appellants were insufficient to show the absence of a serious injury (see Black v Robinson, 305 AD2d 438; see also Zavala v DeSantis, 1 AD3d 354; Gamberg v Romeo, 289 AD2d 525; Junco v Ranzi, 288 AD2d 440). In light of the appellants' failure to establish a prima facie case, it becomes unnecessary to inquire into the sufficiency, or insufficiency, of the plaintiff's opposition (see Coscia v 938 Trading Corp., 283 AD2d 538; Mariaca-Olmos v Mizrhy, 226 AD2d 437).
H. MILLER, J.P., S. MILLER, GOLDSTEIN, MASTRO and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

American Re-Insurance v. United States Fidelity & Guaranty

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered December 9, 2004, which, upon the prior denial of the motion of defendants-appellants United States Fidelity & Guaranty Company (USF&G) and St. Paul Fire & Marine Insurance Company (St Paul) (collectively, the USF&G defendants) to vacate the order of the Special Referee requiring them to produce documents related to the settlement in an underlying action between the USF&G defendants and their insureds, directed the ordered document production to proceed forthwith, unanimously affirmed, with costs.

The court properly ruled that the disputed documents relating to the settlement negotiations are discoverable since they are material and necessary to the reinsurers' defense of the action (CPLR 3101[a]; see Masterwear Corp. v Bernard, 298 AD2d 249, 250 [2002] and 3 AD3d 305 [2004]). The so-called "settlement privilege" is inapplicable since the reinsurers seek the settlement-related materials for a purpose other than proving USF&G's liability in the underlying coverage action (see CPLR 4547).

The "follow-the-fortunes" doctrine (see Travelers Cas. & Sur. Co. v Certain Underwriters at Lloyds of London, 96 NY2d 583, 595-596 [2001]; see also American Ins. Co., v North Am. Co. for Prop. & Cas. Ins., 697 F2d 79, 81 [2d Cir 1982]) does not bar disclosure since, here, the reinsurers claim, with support in the record, that exceptions to the doctrine apply. [*2]

We have considered appellants' remaining arguments and find them unavailing.

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

ENTERED: JUNE 2, 2005

CLERK