Coverage Pointers - Volume VII, No. 18

3/9/06              Simpson v. Feyrer

Appellate Division, Third Department

Absence of Significant Gaps in School and/or Employment Result in Dismissal on Serious Injury 90/180 Category; and Dizziness and Photophobia Insufficient to Meet the Consequential/Significant Limitation Categories

Plaintiff’s claim that she met the 90/180 day category of serious injury pursuant to Insurance Law § 5102(d) are rejected as the plaintiff's own examination before trial testimony contradicted that assertion.  Although plaintiff did not attend class the day following the accident, she also did not seek medical treatment until approximately one week later. And, while plaintiff could not recall whether she attended classes the week following her initial visit to the local hospital emergency room, her testimony failed to disclose any significant gaps in her school and/or employment schedule or daily activities.

           

Plaintiff also failed to establish she sustained a serious injury under either the permanent consequential limitation of use or the significant limitation of use categories.  The Court held that the evaluation performed by her treating neurologist at best demonstrated that plaintiff's postaccident course "suggests that she sustained some kind of mild cerebral injury which effects [sic] her visual perception." The  neurologist’s assessment of plaintiff's condition, as well as his conclusory averment that she "sustained a permanent degree of post-concussive syndrome and photophobia," was found to have limited evidentiary value. The evaluations of plaintiff occurred in May 1998 and June 1998, well before plaintiff's alleged dizziness and photophobia resolved, and there was nothing in his report to suggest, much less document, any degree of significant impairment and/or permanency as to these symptoms.

3/7/06              Allstate Insurance Company v. Swinton
Appellate Division, Second Department

34 Delay to Disclaim Unreasonable as Grounds for Immediate Disclaimer were Present

This was a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim.  The Court found that a 34-day delay by Clarendon National Insurance Company, proposed additional respondent, to issue a disclaimer was unreasonable.  The disclaimer was based upon the failure of the insured to notify it of the accident as soon as "reasonably possible" and the fact that the person driving the vehicle at the time of the accident was not listed as a driver on the policy. Clarendon asserted that the delay resulted from the claims adjustor's investigation of whether the insured attempted to notify Clarendon through an insurance agent. However, Clarendon refused to produce at the framed issue hearing the claims adjuster who investigated the claim and the witness produced at the framed issue hearing was unable to state when the insurance agent was contacted. Therefore, Clarendon's assertion was unsubstantiated.  Furthermore, the fact that the person driving the vehicle at the time of the accident was not listed as a driver on the policy was ascertainable from the policy itself. In any event, Clarendon could have immediately disclaimed based upon lack of notice and thereafter disclaimed in a separate letter on the additional ground that the driver was not listed as an insured driver once that fact was ascertained.

 

3/7/06              State Farm Mutual Automobile Insurance Company v. Rinaldi

Appellate Division, Second Department

When Timely Notice of Accident Given, Carrier Must Show Prejudice by Late Notice of the SUM Claim in order to effectively Disclaim

This was a proceeding pursuant to CPLR article 75 to stay arbitration in a SUM claim.  The Court finds that where "an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage" (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476). No such showing of prejudice was made by the carrier in this case. Nevertheless, because Rekemeyer was decided after the order appealed from was issued; the Court remits the case to the Supreme Court for the carrier to have an opportunity to demonstrate prejudice, if any, by late notice of the claim.

 

3/7/06              Modern Continental Construction Co. v. Giarola
Appellate Division, Second Department

Five Month Delay in Notice of the Accident by Claimant Untimely as Matter of Law

On October 6, 2003, a truck owned by Great Sing Building Supply (Great Sing), operated by Giarola and insured by Eveready, swerved into a temporary concrete barrier in a construction zone on the Long Island Expressway (LIE). No one was injured and no other vehicles were involved in the accident. The collision, however, caused approximately 10 five-gallon containers of roofing sealant to fall off the bed of the truck and spill onto the roadway. The construction zone where the accident occurred was under the care and control of Modern Continental Construction Co. (Modern), pursuant to an agreement between Modern and the New York State Department of Transportation. Modern under that agreement cleaned up the spill and repaired the roadway at a cost of $26,255.

 

On or about March 1, 2004, Modern notified Great Sing and Eveready that it would seek to recover the clean-up and repair costs as a result of Giarola's alleged negligence. On or about March 8, 2004, Eveready disclaimed coverage as to Great Sing and Modern for failure to provide timely notice under the policy. Two days after receiving Eveready's disclaimer letter, Great Sing notified its insurance broker of the accident. In November 2004, Modern commenced the main action against Great Sing and Giarola.  The Court finds that Great Sing's notice of claim, made nearly five months after the accident, was untimely as a matter of law and that Great Sing's belief that it could not legally be held liable for any damage to the LIE caused by the alleged negligence of its driver, was unreasonable as a matter of law as cause for the delay.

 

3/7/06              Travelers Insurance Company v.  Utica Mutual Insurance Company
Appellate Division, Second Department

Question of Fact as to what Policy Period would Cover Additional Insured

Long allegedly sustained injuries on July 3, 2001, while performing electrical work at the premises of Long Island Water (LI Water). Long was then working as an employee of nonparty Wire and commenced an action to recover damages from LI Water.

 

LI Water and its insurer Travelers instituted this action seeking declaratory judgment that Utica Mutual was obligated to defend and indemnify LI Water in the underlying action. They argued that LI Water was an "additional insured" under an "occurrence based" general commercial liability policy effective from January 24, 2001, to January 24, 2002 (the Utica policy), issued by Utica to Wire, and that Utica was therefore required to defend and indemnify LI Water in the underlying action. Utica moved for summary judgment contending that (1) pursuant to a certificate of liability insurance dated July 5, 2001, LI Water was not named as an "additional insured" on the Utica policy until two days after Long's accident, and (2) the purchase order from LI Water to Wire did not specifically require Wire to name LI Water as an additional insured on the Utica policy. Plaintiffs cross-moved for summary judgment declaring that (1) LI Water was an additional insured on the Utica policy on the date of Long's accident, and (2) Travelers and Utica were co-primary insurers of LI Water.

 

The Court affirms the Lower Court and finds that an ambiguity exists as to whether LI Water became an additional insured effective as of the date of the certificate, July 5, 2001, or the effective date of the Utica policy, January 24, 2001. Although the certificate only lists the effective dates of the Utica policy, January 24, 2001, to January 24, 2002, it does not specifically indicate the date on which it became effective. Nor is there evidence that an endorsement was ever issued specifically adding LI Water as an additional insured on the Utica policy. There was a stipulation relied upon by the plaintiffs that provided that the certificate was binding, but that stipulation did not resolve the effective date of the certificate.  And although the March 11, 2001, purchase order from LI Water to Wire did not specifically obligate Wire to name LI Water as an additional insured on the Utica policy, correspondence from Travelers suggests that LI Water and Wire may have had an oral contract requiring Wire to name it as an additional insured on the Utica policy. Therefore, a question of fact exists as to whether the parties intended LI Water to be an additional insured throughout the period of the Utica policy.

 

3/7/06              Fakhoury v. Kinlock

Appellate Division, Second Department

Lack of Comparisons of Range of Motion Not Sufficient to Pass Burden on Serious Injury to Plaintiff

One of the defendant's own examining physicians who saw the plaintiff found that the plaintiff's herniation at L4-5 was caused by the accident and was a permanent injury. Moreover, while that physician specified the ranges of motion in the plaintiff's lumbar spine, he failed to compare those findings to the normal range of motion.

 

3/7/06              Iacovazzo v. Ahmad

Appellate Division, Second Department

Plaintiffs Defeat Serious Injury Motion with Submission of Objective Tests that Quantify Limitations

Plaintiffs overcame a serious injury threshold motion by submission of the treating physician who set forth the objective tests he used to quantify significant limitations in the range of motion of the injured plaintiff's cervical spine. Moreover, plaintiff's treating physician opined that the injuries to her cervical spine were caused by the accident and amounted to a significant limitation of use of her cervical spine. The plaintiffs also submitted the affirmation of the examining radiologist who confirmed the presence of herniated discs at C3-4, C4-5, and C6-7. This evidence was sufficient to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury as a result of the subject accident.

 

3/2/06              Secore v. Allen

Appellate Division, Third Department

And Again (Take the Hint) Serious Injury Threshold is met with Objective Evidence of Significant Limitation

Defendant’s motion on plaintiff’s failure to meet the serious injury threshold within the meaning of Insurance Law § 5102(d) was properly denied as:

 

            1.         Plaintiff’s treating physician opined that plaintiff suffered from a "neuromuscular disorder afflicting the muscles and their fascia, cervical and lumbar facet syndrome, left C5 radiculopathy, and left L5 radiculitis" and that said injuries were causally related to the February 2002 accident. He further described how the limitations and restrictions of movement in plaintiff's cervical and lumbosacral spine regions fell substantially below accepted normal ranges and limited her ability to lift more than five pounds or sit, stand or walk without restriction for more than a few minutes. Significantly, his opinion was rendered notwithstanding his specific acknowledgment of plaintiff's preexisting degenerative disc disease.

    2.         Plaintiff testified that her injuries rendered her unable to return to her employment since the date of the accident and, additionally, they have precluded her from engaging in many of her preaccident activities, including taking her grandchildren to the park, vacuuming, laundry, dancing, dressing, cooking, taking out the garbage and operating a motor vehicle. These claims were found to be supported by objective medical conclusions finding plaintiff totally disabled as a result of the accident.  Thus, defendants' motion to dismiss the 90/180-day claim was properly denied.

3/2/06              Smith v. Genardo

Appellate Division, Third Department

Lack of Objective Evidence on Significant Limitation Category of Serious Injury Warrants Dismissal

The defendant’s orthopedic surgeon opined, "There is no evidence that the right knee complaints (of plaintiff) at this time have any relationship to the motor vehicle accident." In so concluding, he noted plaintiff's well-documented prior history of knee problems and was of the view that the difficulties that plaintiff experienced with his knee prior to the underlying motor vehicle accident simply persisted after the accident as well. The Court finds that this was sufficient to discharge defendant's initial burden with regard to the significant limitation of use category and shifting the burden to plaintiff.

 

Plaintiff relied primarily upon an expert affidavit (specialty not indicated in the decision) that indicated plaintiff ambulates with a "slightly antalgic gait" and has "mild patella/femoral pain and medial and lateral joint line tenderness." Also that plaintiff's "left knee flexes 10 degrees further than the right knee," that plaintiff's right calf is one-half inch smaller than his left calf and that plaintiff has an unspecified degree of weakness in his right leg plantar flexion. But the affidavit failed to demonstrate either, through objective medical evidence, the actual limitation of use that plaintiff has sustained or, alternatively, the manner in which plaintiff's alleged limitation compares to the normal function or use of the affected body member. At best, plaintiff suffered a mild, minor or slight limitation of use- insufficient to avoid dismissal on serious injury grounds.

 

2/28/06            Kaplan v. Vanderhans
Appellate Division, Second Department

Complete Failure of Plaintiff to Rebut Defendant’s Proof on Serious Injury Earns Dismissal

The plaintiff's submissions failed to address the finding of the defendants' radiologist who attributed the plaintiff's bulging discs in her cervical spine and herniated disc in her thoracic spine to degeneration. Therefore, this rendered speculative the opinion in the affirmed medical report of the plaintiff's treating physician that the plaintiff's conditions, including radiculopathy, were caused by the subject motor vehicle.  The plaintiff's treating physician also failed to account for the notations in the plaintiff's medical records which indicated that she recovered from her injuries within five months of the accident and failed to submit any competent medical evidence to support her claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days following the subject accident. See similar cases at  Franco v.  Akram (Second Department); Flores v. Leslie , Blackmon v. Dinstuhl ( First Department)

 

2/28/06            Kelly v.  Rehfeld

Appellate Division, Second Department

Lack of Objective Findings by Defendant’s Doctor Insufficient to Dismiss on Serious Injury

The defendant failed to make a prima facie showing that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Although defendant's examining orthopedist concluded that the infant plaintiff had no restriction of range of motion in her cervical spine, the orthopedist "failed to set forth the objective tests he performed which led him to that conclusion".  In addition, defendant's neurologist reported a finding of mild paravertebral tenderness of the cervical, thoracic, and lumbar sacral regions and that her range of motion was restricted, although not significantly, without assigning a quantitative percentage or qualitative assessment of the degree of restriction of range of motion. See similar case at  Exilus v. Nicholas

 

2/28/06            Wright v. Peralta

Appellate Division, Second Department

Unrebutted Objective Evidence that Range of Motion was Unchanged Grounds for Dismissal

The defendant made a prima facie showing of entitlement to judgment as a matter of law by presenting objective evidence that the plaintiff did not sustain a serious injury pursuant to Insurance Law §5102(d). An affirmed report by the defendant's orthopedist compared the relevant normal ranges of motion with the present ranges and found that the plaintiff suffered no limitation (See Toure v Avis Rent A Car Sys., 98 NY2d 345). In opposition, the plaintiff failed to present any medical evidence to raise a triable issue of fact.

 

2/24/06            Santos v. Landroni

Appellate Division, First Department

Plaintiff’s Failure to Explain 3 ½ Year Gap in Treatment Fatal on Serious Injury Motion

The affirmed medical reports of defendants' neurologist and orthopedist, detailing the objective tests performed and finding that plaintiff had full range of motion in the affected areas and had recovered from sprain/strain type injuries, together with the affirmation of a radiologist who reviewed plaintiff's MRI films and attested that she had no disc injury, satisfied defendants' burden of establishing, prima facie, that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d).  Absent from plaintiff's submissions was the lack of any contemporaneous evidence of limitations or restrictions. Plaintiff was examined soon after the accident, but no quantification of her limitations appeared in the record. Plaintiff's medical affirmation attests to a range of motion limitation in the context of a single examination conducted 3 ½ years after the accident, too remote in time to be.  The three year gap in treatment, nowhere explained, is fatal to plaintiff's claim of serious injury.

 

Audrey’s Angle on No-Fault

 

In this feature to the newsletter, we highlight recent no-fault arbitration awards.   The compilation and publication of these awards is not at the same level as traditional reported case law.  There is no single source to conduct comprehensive research in the area.  This feature seeks out notable current awards and judicial determinations and provides them to our subscribers.

 

We encourage the submission of no-fault awards, including Master Arbitration awards that address interesting issues.  These can be submitted to Audrey Seeley at [email protected].   With all submissions, we ask that you forward a redacted version of the award omitting the parties’ names and that the document be in PDF format.  For copies of these decisions, contact Audrey.

 

3/8/06  In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)

Treating Physician’s Opinion Of Lack of Necessity For On Going Neurological Care Coupled with Negative IME Sufficient To Defeat Lost Wage Claim.

Here is the Angle:     Applicant’s lost wage claim was denied based upon a negative neurological IME and the treating physician’s opinion that Applicant did not require on going neurological care.

 

The Analysis:              This arbitration sought $12,000.00 in lost wages from May 22, 2005 to October 13, 2005.  The Applicant was involved in a January 27, 2004, motor vehicle accident.  The insurer denied Applicant’s lost wage claim effective May 27, 2005, based upon a negative independent medical examination (IME) by Dr. Patrick Hughes, conducted on April 28, 2005.

 

Dr. Hughes’ IME report indicated that Applicant complained of low back pain and intermittent headaches.  He opined that Applicant had a good prognosis and had reached preaccident status.

 

Applicant submitted medical records from her treating physician Dr. Sheila Rubin dated March 8, 2005, which indicated that Applicant’s upper back and shoulder pain were nearly resolved.  Dr. Rubin remarked with respect to Applicant’s headaches that despite Applicant’s discontinuance of Topamax her headaches were markedly decreased.  Dr. Rubin concluded that Applicant does not necessarily require on going neurological care for her headaches as they were under control and physical therapy would provide musculoskeletal pain relief.

 

3/2/06  In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Mary Anne Theiss, Esq. (Onondaga County)

Applicant’s Pinched Sciatic Nerve While Operating A Bus Does Not Arise Out Of The Use And Operation Of A Motor Vehicle.

Here is the Angle:      Applicant’s pinched sciatic nerve while operating a bus during the course of his employment was not an injury arising out of the use and operation of the motor vehicle.

 

The Analysis:              This issue in this case was whether Applicant had sustained an injury arising out of the use and operation of a motor vehicle.

 

On May 17, 2005, Applicant was a bus driver began having back pain attributed to continuous pressure to his low back from the lumbar seat.  The Applicant worked for three weeks after the initial low back pain then ceased working on June 7, 2005, due to continuous low back pain and leg numbness.  On June 7, 2005, Applicant was diagnosed with a pinched sciatic nerve in his back.

 

Applicant received Workers’ Compensation benefits and then applied for no-fault benefits to supplement his Workers’ Compensation benefits.  The insurer denied Applicant no-fault benefits on the basis that the Applicant did not sustain an injury arising out of the use and operation of a motor vehicle.

 

Insurance Law §5102(a)(1) provides that a person is entitled to first-party benefits from the insurer of the vehicle for a loss arising out of the use or operation of the vehicle.  11 NYCRR §65.12(e) provides that the use or operation of a motor vehicle includes loading or unloading.

 

Arbitrator Theiss found that there is no definition of “use or operation” of a motor vehicle and turned to the three-prong test set forth in Manhattan and Bronx Surface Transit Operating Authority v. Gholson, 420 NYS2d 298:

 

1.         The accident must arise out of the inherent nature of the automobile;

2.         The accident must arise within the natural territorial limits of an automobile and the accident use, loading, or unloading must not have terminated; and

3.         The automobile must not merely contribute to the condition producing the injury but must itself produce the injury.

 

Arbitrator Theiss noted that Walton v. Lumbermens Mut. Cas. Co., 88 NY2d 211 (1996) held that the motor vehicle must be the proximate cause of the injury otherwise, individuals would be permitted to recover for back strains and slip and fall injuries occurring while the motor vehicle is in use but that are wholly unrelated to the motor vehicle’s use.

 

Ultimately, Arbitrator Theiss found that Applicant had not satisfied the criteria set forth in Gholson thereby denying Applicant’s claim.

 

2/27/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)

Failure To Submit Proof That The Medical Bills In Dispute Were Submitted To The Insurer Results In Denial Of Claim.

Here is the Angle:      Applicant’s failure to provide proof that the medical bills in dispute were actually submitted to the insurer for either payment or denial was fatal to the Applicant’s $16,650.00 claim.  We note that the insurer never raised the issue but the Arbitrator does have the ability to raise it.

 

The Analysis:              The Applicant sought $16,650.00 in medical bills for cervical and lumbar spine surgeries.

 

The insurer issued three blanket denials dated November 30, 2001, January 8, 2003, and May 29, 2003.  The November 30, 2001, blanket denial was for a lumbar discectomy based upon a peer review.  The January 8, 2003, blanket denial was a partial denial of cervical spine surgery based upon a neurosurgical IME.  The May 29, 2003, blanket denial was for chiropractic care and massage therapy based upon an independent medical examination (IME).

 

We note that neither party ever indicated whether the bills at issue in the arbitration were ever submitted to the insurer for either payment or denial.

 

Applicant’s AR-1 indicated that Applicant sought reimbursement for money paid to various health providers from proceeds of a settlement from a personal injury action.  The AR-1 indicated “unknown” regarding when the bills were mailed to the insurer.  Also, it is not clear whether the individual bills listed in the AR-1 were submitted as evidence.

 

Arbitrator McCorry found that without evidence that the bills were submitted to the insurer for payment the claim must be denied.   However, Arbitrator McCorry noted that if the individual bills would have been submitted than the insurer’s use of blanket denials would not have been appropriate because it cannot be ascertained from a blanket denial if a denial was timely.

 

2/24/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)

Once Assignment Provided To Health Care Provider The Insurer’s Failure To Provide Copy of Denial To Eligible Injured Person Not A Late Denial When Denial Based Upon Violation of 45-Day Rule.

Here is the Angle:      If an eligible injured person provides an assignment of benefits in favor of a health provider, the health provider then owns the claim as well as the responsibility for timely submitting proof of claim.  Since the health provider owned the claim, it was appropriate that the insurer only provide a copy of the denial to the health provider as the health provider was the only entity that could make the claim and have standing to proceed with an arbitration arising out of the denial of the claim.

 

The Analysis:              Applicant, eligible injured person (EIP), sought $344.60 in medical expenses, as a result of a November 3, 2004, motor vehicle accident.  The insurer denied the medical claim on the basis that the claim was not timely submitted within 45 days from the date the service was rendered.

 

Applicant argued that the denial was untimely as to the EIP because the insurer did not provide the EIP with a copy of the denial dated February 28, 2005 until March 31, 2005.  The EIP provided an assignment of benefits in favor the medical providers whose bills were at issue in this arbitration.

 

Arbitrator McCorry found that when the EIP provided an assignment to the health providers that the EIP no longer was responsible for the medical bills.  The claim for those bills belongs to the health provider.  Therefore, the health provider bore the responsibility of timely submitting its claim to the insurer for payment.  Thus it was appropriate that the insurer only issued a denial addressed to the health provider.

 

Further, Arbitrator McCorry found that the Applicant did not provide written proof of clear and reasonable justification for the late submission.  Accordingly, Applicant’s claim was dismissed.

 

 

3/3/06              All County Open MRI & Diagn. Radiology v. Travelers Insurance Co.  

Appellate Division, Second Department

Insurer’s Reliance Upon A Peer Review Concluding Lack of Medical Necessity Based Upon Lack of Sufficient Information Improper Basis For Denying Claim.  By The Way, In This Electrodiagnostic Testing Claim, Plaintiff Need Not Submit A Letter of Medical Necessity.

Here is the Angle:      The insurer’s denial of an electrodiagnostic test based upon a peer review concluding that the documentation provided did not provide sufficient information to determine medical necessity was improper.  The Court held that in that case the insurer has verification rights and should exercise them to obtain the additional information for the peer reviewer before such an opinion is rendered.  Moreover, the Court held that the plaintiff was not required to submit a physician affidavit of medical necessity for the testing to establish a prima facie case.  The plaintiff’s submission of the proof of claim was sufficient.

 

The Analysis:              The insurer denied an electrodiagnostic test on the basis of a peer review.  The peer reviewer concluded that there was lack of medical necessity for the testing because of lack of sufficient information.  The Court held that the denial was improper.  The result would be been different had the peer review had been based upon the pertinent physician’s records and other documentation had been requested and provided for conducting the peer review with the peer reviewer concluding a lack of substantiation of medical necessity based upon the documents. 

 

In this case, the insurer failed to use its claim verification procedures to obtain the documents required for the peer reviewer to conclude whether there was a lack of substantiation of medical necessity. 

 

Further, the Court held that plaintiff was not required to submit a letter of medical necessity for the electrodiagnostic testing.  Rather, plaintiff’s submission of proof of claim established a prima facie case of medical necessity.

 

Across Borders

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

3/7/06              Peachtree Casualty Ins. Co. v. Professional Massage Services, Inc.
District Court of Appeal, First District, State of Florida

Insurers are not liable for Claims Submitted More than 30 Days after the Date of Service, Even if the Claim was previously and erroneously billed to a Different Insurer

After being injured in a car accident, Lisa Cliett received treatment from the respondent, Professional Massage Services, but mistakenly informed Professional Massage that her insurance company was Dairyland, though her actual insurance company was petitioner, Peachtree Casualty. Professional Massage mistakenly billed Dairyland, and did not become aware of the error until Dairyland denied the claim. By the time Professional Massage billed Peachtree, more than 30 days had passed between the date of service to the submission of claim. Therefore, Peachtree denied the claim, because Professional Massage had violated section 627.736(5) (b) of the Florida Statutes. Professional Massage filed suit, and argued that Peachtree was responsible for the claim, because the claims were “previously billed on a timely basis,” though to the wrong party. The trial court found for Professional Massage, because it was equitable and consistent with legislative history to allow its claim to stand. On appeal, the court found that the lower court had departed from an essential requirement of law, thereby necessitating the quashing of the circuits court order upholding the lower court’s decision. The Court of Appeal found that the clear reading of the statute indicated that insurers are only liable for those amounts previously billed to it, not to other insurers, and, therefore, the lower courts decision was based on an erroneously reading of the law.

 

Submitted by: James A. Gallagher and Thomas M. Mealiffe (Gallagher Gosseen Faller & Crowley)

3/7/06              Kinsey v. Pacific Employers Ins. Co.
Connecticut Supreme Court

Lack of Strict Compliance with Statutory Requirement for Reduction in Underinsured Motorist Coverage Did Not Void Election by Corporate Insured
The Connecticut Supreme Court reversed the decision of the lower court in holding that failure to strictly comply with a statutory requirement for an election to reduce the amount of uninsured/underinsured motorist coverage did not render the election by a corporate insured ineffective. The insured, a corporation with sophisticated risk management personnel, elected to reduce its uninsured/underinsured coverage limit from its normal fleet liability coverage limit of $1 million to the statutory minimum limit in Connecticut of $40,000. The election form contained cautionary language about the value of such coverage in eight-point type, while the statute mandated twelve-point type. The required language stated, in part, “WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY.” An employee of the insured was involved in an accident with an underinsured driver and sought to enforce a claim against the insurer under the full coverage limit, arguing that the election by the insured to reduce underinsured coverage was invalid because of the type size of the cautionary language. The court found the statutory language to be ambiguous as the reference to “your family” strongly suggested that the requirement was “designed to protect individual consumers of insurance and not corporations insured under fleet policies.” Turning to the legislative intent, the court held that strict adherence to the twelve-point requirement of the statute was not required in the context of a commercial fleet policy, and rejected the employee’s claim. The court noted that there was no claim that the insured was not fully cognizant of the effects of the election.

 

Submitted by: Bruce D. Celebreeze and James E. Shafer (Sedgwick, Detert, Moran and Arnold LLP)

 

 

 

3/3/06              Nationwide Mutual Ins. Co. v. Wilson

Maryland Court of Special Appeals

Fellow Employee Exclusion Was Effective to Reduce Limit of Coverage of Business Automobile Policy to Statutory Minimum Amount
The Court of Special Appeals of Maryland reversed the lower court and held enforceable an exclusion in an employer’s business automobile policy limiting liability coverage to the statutorily mandated minimum for claims made by an insured’s fellow employee for injury arising out of and in the course of the fellow employee’s employment. Two employees of the insured corporation were returning from a job in a company truck insured under the business automobile policy when the driver fell asleep at the wheel, causing an accident in which the other employee was seriously injured. The limit of liability coverage under the policy without the exclusion was $1 million, while the statutorily mandated minimum amount in Delaware was $20,000. The injured employee passenger brought a claim against the employee driver, and the two employees sought coverage from the insurer in the full policy amount. The court held in favor of the insurer, ruling that the exclusion limiting coverage to the mandated minimum amount was not against public policy. The court distinguished the case from prior authority which held that exclusion to automobile insurance which completely barred coverage for fellow employees violated public policy.

 

Submitted by: Bruce D. Celebreeze and James E. Shafer (Sedgwick, Detert, Moran and Arnold LLP)

3/3/06              American Family Ins. Co. v. Co Fat Le
Eighth Circuit Court of Appeals

Liability Coverage under Homeowner’s Policy for Claims in Connection with Carbon Monoxide Poisoning in Auto Parked in Garage Precluded by Vehicle Exclusion
Applying Missouri law, the Court of Appeals for the Eighth Circuit upheld the district court’s decision that an exclusion in a homeowner’s policy for bodily injury “arising out of the ownership, supervision, entrustment, maintenance, operation, use, loading or unloading of any type of motor vehicle” precluded liability coverage for lawsuits arising out of the carbon monoxide poisoning of five youths in a car in the insured’s’ garage. The car was parked in the garage by the insured’s’ son, who left the engine running with the garage door closed. The youths in the car were listening to the car stereo while under the effects of the drug ecstasy before they died. Wrongful death actions were brought against the insured homeowners under theories of premises liability and general negligence for failing to maintain a safe premises and to warn the decedents of the risk of carbon monoxide poisoning. The court rejected the argument that the alleged negligence of the insured homeowners was a concurrent proximate cause of the injury, which would have avoided the application of the exclusion. It held that these theories of negligence were still dependent upon the use of the vehicle in causing the injury and were therefore not independent concurrent causes of the death of the youths.

 

Submitted by: Bruce D. Celebreeze and James E. Shafer (Sedgwick, Detert, Moran and Arnold LLP)

2/28/06            Knoepfler v. Guardian Life Insurance Company
Third Circuit Court of Appeals

The Proof of Loss Provision Would Be Under the Majority of Court’s View
The Third Circuit found that the New Jersey Supreme Court would likely follow the majority of jurisdiction’s interpretation of a certain clause in the proof of loss provision of a policy. The parties were in dispute regarding the exact time the insured was to file proof of loss, which prompted a period for filing suit against the insurer. The language of the policy stated that proof of loss was to be given within ninety days of the period for which the insurers were liable. The District Court granted the insurers’ motion ruling that it fell under the precedent of Mosier. The Third Circuit found that Mosier did not apply to the facts of this case; the two cases discussed different clauses of the proof of loss provision. The Court concluded that, under New Jersey law, the Supreme Court of New Jersey would likely follow the majority of courts finding that the language “the end of the period for which [the insurer] is liable” means the end of the entire period of continuous disability for which the insurer is liable.

 

Submitted by: Nancy R. Winschel (Dickie, McCamey & Chilcote, P.C).

2/27/06            Tourdot v. Rockville Health Plans, Inc.
Seventh Circuit Court of Appeals

Provisions That Exclude Coverage for “Any Illegal Act” Are Not Deemed Ambiguous

The Seventh Circuit found that the exclusion of injuries caused by “illegal acts” provision of the insurance policy was not ambiguous. Plaintiff sustained multiple injuries after crashing his motorcycle into an automobile. At the time of the accident, the plaintiff’s blood alcohol level was over the legal limit. Plaintiff’s insurer denied coverage for the injuries under an exclusion for, among other things, “any illegal act.” Plaintiff challenged this language arguing it was ambiguous. The Court, finding the terms “any illegal act” unambiguous, said the terms were defined in their plain meaning as “any act contrary to law.” The Court also declared that even though the plaintiff was not criminally charged for drunken driving because it was his first such offense, the act of driving under the influence of alcohol is an act contrary to law and the penalty structure is immaterial. As such, it was appropriate for the insurer to deny coverage to the insured under the “illegal acts” provision.

 

Submitted by: Nancy R. Winschel (Dickie McCamey & Chilcote)

 

 

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Exilus v. Nicholas

Callahan & Malone, Mineola, N.Y. (Anne V. Malone of
counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants Fritzner Nicholas and Pierre Christopher appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Douglass, J.), dated October 27, 2004, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Magdalina Exilus did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The appellants' submissions in support of their motion for summary judgment were insufficient to establish, prima facie, that the plaintiff did not sustain a serious injury as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The appellants' examining orthopedist failed to set forth the objective test or tests performed supporting his claim that there was no limitation of range of motion in the infant plaintiff's lumbar spine, cervical spine, or upper extremities (see Barrett v Jeannot, 18 AD3d 679; Zavala v DeSantis, 1 AD3d 354; Black v Robinson, 305 AD2d 438). Similarly, while the appellants' examining neurologist opined that all of the infant plaintiff's joints, extremities, and vertebral segments exhibited complete, free, and painless range of motion (cervical through lumbar), the neurologist did not specify the objective tests used to arrive at those conclusions. [*2]

Since the appellants failed to establish their entitlement to judgment as a matter of law, we need not consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Lesane v Tejada, 15 AD3d 358; Coscia v 938 Trading Corp., 283 AD2d 538).
ADAMS, J.P., RITTER, GOLDSTEIN, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 Franco v.  Akram

DeAngelis & Hafiz, Mount Vernon, N.Y. (Talay Hafiz of
counsel), for appellants.
Dwyer & Taglia, New York, N.Y. (Gary J. Dwyer of
counsel), for respondents.
Milber, Makris, Plousadis & Seiden, LLP, Woodbury, N.Y.
(Lorin A. Donnelly of counsel), for
Americo Franco on the
counterclaim.

 

In an action to recover damages for personal injuries, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Johnson, J.), dated July 2, 2004, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) and dismissed the complaint.

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

The defendants established, prima facie, that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), thereby shifting the burden to the plaintiffs to submit sufficient evidence to raise a triable issue of fact on that issue (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, contrary to the plaintiffs' contentions, the Supreme Court properly determined that their medical submissions failed to establish that either plaintiff sustained a serious injury as a result of the subject accident (see Franchini v Palmieri, 1 NY3d 536; Clark v Perry, 21 AD3d 1373; Montgomery v Pena, 19 AD3d 288). Moreover, neither plaintiff submitted any competent medical evidence to corroborate their claims that they were unable to perform substantially all of their daily activities for not less than 90 of the 180 days immediately following the subject accident as a result of the accident (see Sainte-[*2]Aime v Ho, 274 AD2d 569).
SANTUCCI, J.P., LUCIANO, FISHER and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Kaplan v. Vanderhans

Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Mary
Joseph of counsel), for appellants.
Tierney & Tierney, Port Jefferson, N.Y. (Stephen A. Ruland
of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated January 28, 2005, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

Contrary to the Supreme Court's finding, the defendants' evidence, consisting of the plaintiff's deposition testimony, medical records from the plaintiff's treating neurologist, the affirmed report of their own radiologist, and the affirmed reports of their own examining orthopedist and neurologist, established, prima facie, 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). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's submissions failed to address the finding of the defendants' radiologist who attributed the plaintiff's bulging discs in her cervical spine and herniated disc in her thoracic spine to degeneration (see Giraldo v Mandanici, 24 AD3d 419; Lorthe v Adeyeye, 306 AD2d 252). Therefore, this rendered [*2]speculative the opinion in the affirmed medical report of the plaintiff's treating physician that the plaintiff's conditions, including radiculopathy, were caused by the subject motor vehicle accident (see Giraldo v Mandancini, supra; Lorthe v Adeyeye, supra). Moreover, the plaintiff's treating physician also failed to account for the notations in the plaintiff's medical records which indicated that she recovered from her injuries within five months of the accident (see Brown v Tairi Hacking Corp., 23 AD3d 325; Cantanzano v Mei, 11 AD3d 500). Finally, the plaintiff failed to submit any competent medical evidence to support her claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569; Arshad v Gomer, 268 AD2d 450).
ADAMS, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Kelly v.  Rehfeld

Harold Chetrick, P.C., New York, N.Y., for appellants.
James P. Nunemaker, Jr., Uniondale, N.Y. (Gene W. Wiggins
of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jones, J.), dated October 21, 2004, as, upon reargument, adhered to its prior determination in an order dated June 18, 2004, granting the defendant's motion for summary judgment dismissing the first and second causes of action on the ground that the plaintiff Kelica Kelly did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order dated October 21, 2004, is reversed insofar as appealed from, on the law, with costs, upon reargument, the order dated June 18, 2004, is vacated, the motion for summary judgment is denied, and the first and second causes of action are reinstated.

The defendant failed to make a prima facie showing that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Although the defendant's examining orthopedist concluded that the infant plaintiff had no restriction of range of motion in her cervical spine, the orthopedist "failed to set forth the objective tests he performed which led him to that conclusion" (Korpalski v Lau, 17 AD3d 536, 537). Moreover, the defendant's examining neurologist reported a finding of mild paravertebral tenderness of the cervical, thoracic, and lumbar sacral regions and that her range of motion was restricted, although not significantly, without assigning a quantitative percentage or qualitative assessment of the degree of restriction of range of [*2]motion. Accordingly, the defendant failed to make a prima facie case for judgment as a mater of law (see Korpalski v Lau, supra; Gamberg v Romeo, 289 AD2d 525).

In view of the foregoing, we need not examine the sufficiency of the papers submitted by the plaintiffs in opposition to the defendant's motion for summary judgment (see Mariaca-Olmos v Mizrhy, 226 AD2d 437).
SCHMIDT, J.P., MASTRO, SPOLZINO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Santos v. Landroni

 

Defendants appeal from an order of the Civil Court, Bronx County (Mary Ann Brigantti-Hughes, J.), dated May 19, 2004, which denied their cross motions for summary judgment dismissing the complaint.

 

PER CURIAM:

Order (Mary Ann Brigantti-Hughes, J.), dated May 19, 2004, reversed, with $10 costs, defendants' cross motions for summary judgment granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The affirmed medical reports of defendants' neurologist and orthopedist, detailing the objective tests performed and finding that plaintiff had full range of motion in the affected areas and had recovered from sprain/strain type injuries, together with the affirmation of a radiologist who reviewed plaintiff's MRI films and attested that she had no disc injury, satisfied defendants' burden of establishing, prima facie, that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d) (see Nagbe v. Minigreen Hacking Corp., 22 AD3d 326 [2005]).

In opposition, plaintiff failed to raise triable issues of fact. Absent from plaintiff's submissions was the lack of any contemporaneous evidence of limitations or restrictions. Although plaintiff was examined soon after the accident, no quantification of her limitations appears in the record. Plaintiff's medical affirmation attests to a range of motion limitation in the context of a single examination conducted 3 ½ years after the accident, too remote in time to be probative (see Toulson v. Young Han Pae, 13 AD3d 317 [2004]). Under these circumstances, the allegations of permanence and significance can only be viewed as conclusory and tailored to meet statutory requirements (see Arjona v. Calcano, 7 AD3d 279 [2004]). The three year gap in treatment, nowhere explained, is fatal to plaintiff's claim of serious injury (see Pommells v. Perez, 4 NY3d 566 [2005]; Perez v Rodriguez, __ AD3d__, 2006 N.Y. Slip Op. 00552 [1st Dept, [*2]Jan. 31, 2006]; Colon v. Kempner, 20 AD3d 372 [2005]).

This constitutes the decision and order of the court.
Decision Date: February 24, 2006

Secore v. Allen

Cardona, P.J.

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered August 26, 2005 in Saratoga County, which denied defendants' motion for summary judgment and granted plaintiff's cross motion for, inter alia, partial summary judgment.

On February 20, 2002, plaintiff was driving her vehicle on an access road from Washington Avenue Extension to Crossgates Mall Road in Albany County, following directly behind defendant Keith L. Allen, who was operating an oversized tractor-trailer. As Allen approached the intersection at Crossgates Mall Road, he indicated that he began to make an "extra wide" swing to the left in order to navigate his vehicle to make a right turn onto Crossgates Mall Road. Allen stated that he did not use any turn signal and could not recall whether he checked his mirrors prior to making the turn. He also stated that, at this point on the access road, there was only one lane of traffic. Plaintiff, on the other hand, indicated that she was traveling behind Allen when she observed his left directional signal on as he approached the intersection, at which point she put her right signal on and "got in the lane to turn right," implying that the parties were traveling on a two-lane road at that time. As plaintiff steered her vehicle to the right to pass the tractor-trailer in order to make a right-hand turn, Allen began turning right as well. The two vehicles collided, with the tractor-trailer pushing plaintiff's vehicle against the guardrail. [*2]

Shortly after the accident, plaintiff began treating with chiropractor Michael Tirella,^[FN1] who, in April 2002, diagnosed her as totally disabled and unable to work as a result of the accident. Plaintiff subsequently treated with a neurosurgeon, two neurologists and a physiatrist before being referred to physician James Cole, a specialist in physical medicine and rehabilitation, in January 2003. Through palpation and an electromyography/nerve conduction study (hereinafter EMG), Cole noted numerous permanent injuries all of which he opined to be causally related to the February 20, 2002 accident.

In January 2004, plaintiff commenced this personal injury action against Allen and the owner of the tractor-trailer. Thereafter, defendants moved for summary judgment dismissing the complaint claiming that plaintiff did not sustain a serious injury under any of the categories described in Insurance Law § 5102 (d). Plaintiff cross-moved for partial summary judgment on the issue of liability and for leave to amend her complaint to add an allegation that she sustained economic losses in excess of basic loss (see CPLR 3016 [g]). Supreme Court denied defendants' motion, finding questions of fact as to the significant limitation and 90/180-day serious injury categories. The court granted plaintiff's cross motion in its entirety, prompting this appeal.

Initially, defendants dispute plaintiff's claim that she suffered a serious injury under the significant limitation of use category of Insurance Law § 5102 (d). As the proponents of the motion for summary judgment, defendants bore the initial burden of establishing that plaintiff did not suffer a serious injury under the above category (see Maye v Stearns, 19 AD3d 902, 902-903 [2005]; Hubert v Tripaldi, 307 AD2d 692, 693 [2003]). In that regard, defendants submitted an affidavit of neurologist Kevin Barron, who conducted an independent medical examination of plaintiff in December 2004. He also reviewed certain pleadings and plaintiff's medical records, prior to opining that plaintiff did not sustain any neurologic injury of a permanent nature as a result of the accident. Assuming that this proof was sufficient to shift the burden to plaintiff, we nevertheless conclude that she presented sufficient admissible medical evidence to create triable issues of fact on the significant limitation issue.

Notably, "[t]o establish . . . a significant limitation, the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones" (Clements v Lasher, 15 AD3d 712, 713 [2005]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). We agree with Supreme Court that the proof herein satisfied that standard. The detailed affidavit from Cole establishes, among other things, that he performed several objective tests, including physical examinations, cervical and lumbosacral [*3]compression tests, manual muscle tests and an EMG. As a result of these tests and a review of plaintiff's medical records, which included documented limitations in range of motion of the cervical spine by Tirella, Cole opined that plaintiff suffered from a "neuromuscular disorder afflicting the muscles and their fascia, cervical and lumbar facet syndrome, left C5 radiculopathy, and left L5 radiculitis" and that said injuries were causally related to the February 2002 accident. Cole further described how the limitations and restrictions of movement in plaintiff's cervical and lumbosacral spine regions fell substantially below accepted normal ranges and limited her ability to lift more than five pounds or sit, stand or walk without restriction for more than a few minutes. Significantly, Cole's opinion was rendered notwithstanding his specific acknowledgment of plaintiff's preexisting degenerative disc disease and congenital fusion, as well as her subsequent motor vehicle accident in November 2003, therefore, we find no basis to disturb Supreme Court's ruling denying defendants' motion.

In addition, we find that plaintiff met her burden under the 90/180-day category, which requires plaintiff to have suffered a "medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury" (Insurance Law § 5102 [d]; see Monk v Dupuis, 287 AD2d 187, 191 [2001]). Here, plaintiff avers that her injuries rendered her unable to return to her employment since the date of the accident and, additionally, they have precluded her from engaging in many of her preaccident activities, including taking her grandchildren to the park, vacuuming, laundry, dancing, dressing, cooking, taking out the garbage and operating a motor vehicle. These claims are supported by the objective medical conclusions of Tirella and Cole, both of whom indicated that plaintiff was totally disabled as a result of the accident. Cole also averred, within a reasonable degree of medical certainty, that her condition permanently and substantially impaired her ability to perform customary activities since the date of the accident herein. Notably, in the independent medical examination report, Barron explicitly acknowledged that it was possible for plaintiff's causally-related symptoms to have lasted up to 12 months after the accident. Accordingly, we conclude that defendants' motion to dismiss the 90/180-day claim was properly denied.

Next, we do not agree with Supreme Court's decision granting plaintiff's cross motion for summary judgment on the issue of liability in light of various unresolved issues of fact present in this record. Specifically, a review of the deposition testimonies of plaintiff and Allen reveal disagreement as to whether there were one or two lanes of travel on the access road where the parties' vehicles collided, and whether Allen's left-turn signal was operating prior to his right-hand turn. Significantly, on a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party (see Wells v British Am. Dev. Corp., 2 AD3d 1141, 1142 n 1 [2003]). Thus, for purposes of plaintiff's cross motion, this Court must accept the fact that there was only one lane of travel at the point of impact and that Allen did not signal to make a left turn. Consequently, issues of fact are present, including compliance with Vehicle and Traffic Law § 1123 if applicable, for purposes of this motion and, therefore, summary judgment to plaintiff as to liability should have been denied.

Finally, we are unpersuaded by defendants' claim that plaintiff's cross motion to amend the complaint to assert an allegation of economic loss in excess of basic loss pursuant to CPLR 3016 (g) was erroneous. Although the original complaint did not include an allegation that plaintiff suffered economic loss greater than basic economic loss, plaintiff's substituted counsel cross-moved for leave to amend the complaint shortly after being substituted. Furthermore, it is [*4]clear that the original pleading, as well as the ensuing disclosure, gave defendants ample notice of the occurrences and plaintiff's particularized losses (see generally CPLR 203 [f]). Moreover, the only prejudice accruing to defendants was the potential for increased liability, and that exposure alone cannot constitute sufficient reason to deny the motion (see Warrensburg Bd. & Paper Corp. v Adirondack Hydro Dev. Corp., 186 AD2d 305, 306 [1992]). Thus, given the absence of, among other things, evidence of actual prejudice to defendants, we find no basis to conclude that Supreme Court abused its discretion in granting that aspect of plaintiff's cross motion (see 84 NY Jur 2d, Pleading § 235).

The remaining contentions advanced by the parties have been examined and found to be unpersuasive.

Mercure, Peters, Carpinello and Rose, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiff's cross motion for partial summary judgment; cross motion denied to that extent; and, as so modified, affirmed.

Footnotes

Footnote 1: Tirella observed palpable muscle spasms in plaintiff's cervical and lumbar para-vertebral muscles from C1 to T1 on the left, and from L1 to S1 bilaterally. He also found that plaintiff's range of motion in her cervical spine was decreased to 5 degrees in flexion and extension, 5 degrees in right and left lateral flexion, 30 degrees on left rotation and 20 degrees on right rotation. Tirella likewise indicated plaintiff's lumbosacral range of motion decreased to 30 degrees flexion, 5 degrees extension and 5 degrees on left and right lateral flexion.

 Smith v. Genardo

Crew III, J.P.

Appeal from an order of the Supreme Court (Dowd, J.), entered January 12, 2005 in Otsego County, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint.

In January 1999, plaintiff injured, among other things, his right knee as a result of a work-related accident and subsequently underwent arthroscopic knee surgery, which was performed by William Hopper. Hopper classified plaintiff as 75% disabled as of April 1999, and plaintiff apparently did not return to work prior to the January 2000 motor vehicle accident that gave rise to this action. Following such accident, plaintiff again complained of pain in his right knee. Hopper reduced plaintiff's disability rate to 50% in March 2000 and, in April 2000, performed a second arthroscopic procedure on plaintiff's right knee ^[FN1]. Thereafter, in September 2000, plaintiff underwent an independent medical examination in the context of his then ongoing workers' compensation case and was evaluated by John Buckner, an orthopedic surgeon. [*2]According to Buckner, plaintiff sustained a mild disability with respect to his right knee and, in that regard, suffered a 7½% schedule loss of use of the right knee.^[FN2]

Plaintiff commenced this action in December 2002 seeking to recover for injuries allegedly sustained as a result of the January 2000 accident ^[FN3]. Following joinder of issue, defendant moved for summary judgment dismissing the complaint contending that any injuries sustained by plaintiff did not rise to the level of a serious injury. Supreme Court denied defendant's motion and, apparently, searched the record and, in effect, awarded summary judgment to plaintiff, finding that "plaintiff has sustained a serious injury as defined in the New York State Insurance Law." This appeal by defendant ensued.^[FN4]

In support of his motion for summary judgment dismissing the complaint, defendant tendered the affidavit of orthopedic surgeon Glenn Axelrod, who examined plaintiff in April 2004. Upon completing his physical examination of plaintiff and reviewing plaintiff's comprehensive medical records, as well as plaintiff's examination before trial testimony, Axelrod opined, "There is no evidence that the right knee complaints at this time have any relationship to the motor vehicle accident." In so concluding, Axelrod noted plaintiff's well-documented prior history of knee problems and was of the view that the difficulties that plaintiff experienced with his knee prior to the underlying motor vehicle accident simply persisted after the accident as well. Hence, Axelrod concluded that plaintiff did not suffer "a serious injury or loss of body part causally related to the accident of January 4, 2000." Axelrod's affidavit, in our view, was sufficient to discharge defendant's initial burden with regard to the significant limitation of use category, thereby shifting the burden to plaintiff to come forward with sufficient evidentiary material to create a question of fact in this regard. This plaintiff failed to do.

As this Court recently reiterated, "it is well settled that in order to establish a significant limitation of use of a body function or system, 'the medical evidence submitted by plaintiff must [*3]contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system'" (Paton v Weltman, 23 AD3d 895, 897 [2005], quoting John v Engel, 2 AD3d 1027, 1029 [2003]; see Gehrer v Eisner, 19 AD3d 851, 852 [2005]). Additionally, the plaintiff is obliged to demonstrate that the limitation he or she purportedly suffered is more than mild, moderate or slight (see Gehrer v Eisner, supra at 852).

In opposition to defendant's motion, plaintiff relies primarily upon the affidavit of David Kammerman. According to Kammerman, plaintiff ambulates with a "slightly antalgic gait" and has "mild patella/femoral pain and medial and lateral joint line tenderness." Additionally, Kammerman observed that plaintiff's "left knee flexes 10 degrees further than the right knee," that plaintiff's right calf is one-half inch smaller than his left calf and that plaintiff has an unspecified degree of weakness in his right leg plantar flexion. Although Kammerman indeed opined that plaintiff's right knee pain was exacerbated by the underlying motor vehicle accident and that such accident is 25% responsible for the knee pain and limitations that plaintiff continues to experience, his affidavit nonetheless fails to demonstrate either, through objective medical evidence, the actual limitation of use that plaintiff has sustained or, alternatively, the manner in which plaintiff's alleged limitation compares to the normal function or use of the affected body member. At best, Kammerman's affidavit demonstrates that plaintiff has suffered a mild, minor or slight limitation of use a conclusion seemingly confirmed by Buckner who, it will be recalled, found that plaintiff had only a mild disability with respect to his right knee and a 7½% schedule loss of use of that member. Plaintiff fares no better by resorting to the medical records included in the record on appeal, which demonstrate that Hopper actually reduced plaintiff's degree of disability following the motor vehicle accident. In short, plaintiff's proof is insufficient to raise a question of fact under the significant limitation of use category.

We reach a similar conclusion as to any claim that plaintiff may be asserting under the 90/180-day category. In this regard, the record reveals that as of the January 2000 motor vehicle accident, plaintiff had yet to return to work from his prior work-related injuries and surgery. Indeed, plaintiff's own examination before trial testimony indicates that he was leading an essentially sedentary lifestyle immediately prior to the accident and that his daily activities following the accident mirrored those he engaged in before the accident. Moreover, to the extent that plaintiff was able to identify any particular task that he was unable to perform, we cannot discern from his testimony either the length of time such impairment persisted or to which event the January 1999 work-related accident or the January 2000 motor vehicle accident such impairment is attributable. Accordingly, Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint and, further, in finding that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Peters, Mugglin, Rose and Kane, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed. [*4]

Footnotes

Footnote 1: We note in passing that Hopper's medical records and testimony suggest that plaintiff previously underwent surgery on his right knee in or about 1989.

Footnote 2: Buckner appears to have been unaware of plaintiff's motor vehicle accident and, if anything, his report suggests that the loss of use specified is attributable to the January 1999 work-related incident.

Footnote 3: Notably, plaintiff's complaint does not specify the category under which he allegedly suffered a "serious injury" within the meaning of Insurance Law § 5102 (d).

Footnote 4: Although our analysis of the serious injury issue is somewhat hampered by plaintiff's failure to plead the specific category or categories under which he seeks recovery, a review of the record as a whole and, more to the point, plaintiff's bill of particulars suggests that plaintiff is proceeding under either the 90/180-day or the "significant limitation of use" category. Hence, we will proceed accordingly.

Wright v. Peralta

Andrew Small & Associates, P.C., New York, N.Y. (Joshua Seltzer
of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated December 5, 2003, which denied his motion pursuant to CPLR 3212 to dismiss the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant made a prima facie showing of entitlement to judgment as a matter of law by presenting objective evidence that the plaintiff did not sustain a serious injury as a result of the subject accident. The proof included, inter alia, an affirmed report by the defendant's orthopedist that, as compared to the relevant normal ranges of motion, as set forth in the report, the plaintiff suffered no limitation (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-353; Villalta v Schechter, 273 AD2d 299, 300; cf. Junco v Ranzi, 288 AD2d 440). In opposition, the plaintiff failed to present any medical evidence to raise a triable issue of fact as to whether she sustained a serious injury (see Paul v Trerotola, 11 AD3d 441; Kauderer v Penta, 261
AD2d 365, 366). Accordingly, the court should have granted the defendant's motion for summary judgment dismissing the complaint.
FLORIO, J.P., CRANE, KRAUSMAN, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Flores v. Leslie

Ahmuty, Demers & McManus, Albertson (Brendan T.
Fitzpatrick of counsel), for appellant.
Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W.
Berne of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about April 11, 2005, which denied defendant-appellant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The Court of Appeals has often observed that the " legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). The issue of whether an alleged injury falls within the statutory definition of a "serious injury" can be a question of law for the courts which may be decided on a motion for summary judgment (Licari v Elliott, 57 NY2d 230, 237 [1982]; Martin v Schwartz, 308 AD2d 318, 319 [2003]). The initial burden falls on the proponent of a motion for summary judgment to set forth a prima facie case that the injury is not "serious." Once the movant has established a prima facie case, the burden then shifts to the plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he/she did sustain such an injury, or that there are questions of fact as to whether the purported injury was "serious" (Toure, supra at 350; Cortez v Manhattan Bible Church, 14 AD3d 466, 467 [2005]).

Initially, we find that defendant shouldered his burden of proof that plaintiff did not sustain a serious injury, within the statutory definition, by the submission of a sworn report from Dr. Richard Romano, a chiropractor, who examined plaintiff and reviewed various diagnostic test results as well as reports from other physicians who had also examined plaintiff. Dr. Romano found, inter alia, no restrictions in plaintiff's ranges of motion in her cervical spine, and concluded she had no chiropractic disability related to the automobile accident in question. An MRI dated one month after the accident revealed a normal lumbo-sacral spine and mild herniated [*2]disc at C5-6. Defendant also submitted a report from Laurence Steve, a physical therapist, dated approximately one and one-half years prior to the accident, in which he states that at that time, plaintiff had lower back pain which had worsened over the prior two years despite treatment by a chiropractor. Steve also referred to an MRI which indicated that plaintiff had a bulging disc in her lumbar spine, and noted that she was having difficulty at work because of her condition. A later report by Steve indicates that plaintiff had back surgery and was continuing therapy.

Plaintiff, in opposition, failed to rebut defendant's prima facie showing that she did not sustain a serious injury as the result of the subject accident. The unsworn report of Dr. Donna DeRosa, a chiropractor, discusses plaintiff's subjective complaints, including lower back pain, notes that plaintiff has no difficulty performing various squats and strides and is not in any acute distress, and states that plaintiff's range of motion tests are at or close to normal. In sum, Dr. DeRosa's report does not identify any injuries which qualify as a "serious" injury within the meaning of Insurance Law § 5102(d).

Plaintiff also submitted the sworn report of Dr. Thomas Colavito, a chiropractor, which contradicts Dr. DeRosa's report in a number of areas, and which delineates a great deal more subjective complaints and more restricted ranges of motion. None of plaintiff's submissions, however, adequately address plaintiff's serious and debilitating preexisting back condition, or how plaintiff's current problems, in light of her past medical history, are causally related to the accident (see Knoll v Seafood Express, 5 NY3d 817 [2005]; Franchini v Palmieri, 1 NY3d 536 [2003]). Indeed, Dr. Colavito states that plaintiff had no prior history of such complaints.

Accordingly, plaintiff's submissions are insufficient to defeat defendant's summary judgment motion.

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

ENTERED: MARCH 7, 2006

CLERK

Blackmon v. Dinstuhl

 

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered December 30, 2004, which granted defendants' motions for summary judgment and dismissed the complaint as to all defendants, unanimously affirmed, without costs.

Defendants met their burden of presenting objective medical evidence that the injured plaintiff had not suffered a serious
physical injury as defined in Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Plaintiffs failed to meet their burden, in turn, of supporting the claim of serious injury by producing objective, contemporaneous and qualitative medical evidence regarding alleged range-of-motion limitations causally related to the accident (see Toulson v Young Han Pae, 13 AD3d 317 [2004]). Nor did plaintiffs present competent evidence of a nonpermanent injury that prevented performance of substantially all the material acts constituting usual and customary daily activities for at least 90 days during the 180-day period immediately following the accident (§ 5102[d]). The restriction must be "to a great extent rather than some slight curtailment" (Licari v Elliott, 57 NY2d 230, 236 [1982]). Perry Blackmon's affidavit submitted in opposition clearly contradicts his own deposition testimony, and appears to have been tailored to avoid the consequences of that testimony. As such, it is
insufficient to raise a triable issue of fact (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [*2][2000]). In view of the foregoing, there is no need to reach the issue of liability.

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

ENTERED: MARCH 7, 2006

CLERK

Fakhoury v. Kinlock

 

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 20, 2004, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant failed to make a prima facie showing that the plaintiff did not sustain either a permanent consequential limitation or a significant limitation of her lumbar spine within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). One of the defendant's own examining physicians who saw the plaintiff found that the plaintiff's herniation at L4-5 was caused by the accident and was a permanent injury. Moreover, while that physician specified the ranges of motion in the plaintiff's lumbar spine, he failed to compare those findings to the normal range of motion (see Aronov v Leybovich, 3 AD3d 511). Consequently, since the defendant failed to establish, prima facie, her entitlement to judgment as a matter of law, the sufficiency of the papers submitted in opposition to the motion need not be considered (see Coscia v 938 Trading Corp., 283 AD2d 538).
SCHMIDT, J.P., MASTRO, SPOLZINO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Iacovazzo v. Ahmad

Flanzig and Flanzig, LLP, Mineola, N.Y. (Cathy Flanzig of
counsel), for appellants.
James P. Nunemaker, Jr., Uniondale, N.Y. (Kathleen E. Fioretti
of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Mahon, J.), dated November 16, 2004, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied their cross motion for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant's motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the plaintiffs' arguments, the defendant's evidence was sufficient to establish a prima facie case that the injured 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). In opposition, the plaintiffs submitted the affirmation of the injured plaintiff's treating physician who set forth the objective tests he used to quantify significant limitations in the range of motion of the injured plaintiff's cervical spine. The plaintiffs also submitted the affirmation of the examining radiologist who confirmed, in his annexed report dated December 10, 2002, the presence of herniated discs at C3-4, C4-5, and C6-7. Moreover, the injured plaintiff's treating physician opined that the injuries to her cervical spine were caused by the accident and amounted [*2]to a significant limitation of use of her cervical spine. This evidence was sufficient to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury as a result of the subject accident.

The plaintiffs' remaining contention is without merit.
SCHMIDT, J.P., MASTRO, SPOLZINO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Allstate Insurance Company v. Swinton
 

 

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Kings County (Archer, J.), dated July 1, 2005, which, after a framed issue hearing, denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the law and the facts, with costs, the petition is granted, and the arbitration is permanently stayed.

Under the circumstances of this case, the 34-day delay by proposed additional respondent Clarendon National Insurance Company (hereinafter Clarendon) in issuing a disclaimer was unreasonable (see Gregorio v J.M. Dennis Constr. Co. Corp., 21 AD3d 1056; West 16th St. Tenants Corp. v Public Serv. Mut. Ins Co., 290 AD2d 278, 279).

The disclaimer was based upon the failure of the insured to notify it of the accident as soon as "reasonably possible" and the fact that the person driving the vehicle at the time of the accident was not listed as a driver on the policy. Clarendon asserted that the delay resulted from the [*2]claims adjustor's investigation of whether the insured attempted to notify Clarendon through an insurance agent. However, Clarendon refused to produce at the framed issue hearing the claims adjuster who investigated the claim. The witness produced at the framed issue hearing was unable to state when the insurance agent was contacted. Therefore, Clarendon's assertion was unsubstantiated (cf. Structure Tone v Burgess Steel Prods. Corp., 249 AD2d 144, 145).

Moreover, the fact that the person driving the vehicle at the time of the accident was not listed as a driver on the policy was ascertainable from the policy itself. In any event, Clarendon could have immediately disclaimed based upon lack of notice and thereafter disclaimed in a separate letter on the additional ground that the driver was not listed as an insured driver once that fact was ascertained (cf. Guberman v William Penn Life Ins. Co. of N.Y., 146 AD2d 8, 13-14).

CRANE, J.P., GOLDSTEIN, LUCIANO and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

State Farm Mutual Automobile Insurance Company v. Rinaldi

In a proceeding pursuant to CPLR article 75 to stay arbitration, Maria Rinaldi appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered December 20, 2004, which granted the petition and permanently stayed the arbitration.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

Where, as here, "an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage" (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476). No such showing of prejudice was made by the carrier in this case. Nevertheless, because Rekemeyer was decided after the order appealed from was issued, we remit the matter to the Supreme Court, Nassau County, "for the carrier to have an opportunity to demonstrate prejudice," if any (id. at 476) and, thereafter, for a new determination. [*2]
ADAMS, J.P., SKELOS, FISHER and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

Modern Continental Construction Co. v. Giarola


 

In an action to recover damages for negligence, and a third-party action, inter alia, for a judgment declaring that the third-party defendant is obligated to defend and/or indemnify the defendants in the main action, the third-party defendant appeals from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), dated August 15, 2005, as denied its cross motion for summary judgment, in effect, declaring that it is not obligated to defend and/or indemnify the defendants in the main action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the third-party defendant is not obligated to defend and/or indemnify the defendants in the main action.

On October 6, 2003, a truck owned by the defendant third-party plaintiff Great Sing Building Supply (hereinafter Great Sing) and operated by the defendant third-party plaintiff Miguel A. Giarola, swerved into a temporary concrete barrier in a construction zone on the Long Island [*2]Expressway (hereinafter the LIE), in the vicinity of Searingtown Road. No one was injured and no other vehicles were involved in the accident. The collision, however, caused approximately 10 five-gallon containers of roofing sealant to fall off the bed of the truck and spill onto the roadway. The truck itself was also damaged and had to be towed from the scene. The third-party defendant, Eveready Insurance Company (hereinafter Eveready), which allegedly insured the vehicle, was not notified of the accident at the time.

The construction zone where the accident occurred was under the care and control of the plaintiff, Modern Continental Construction Co. (hereinafter Modern), pursuant to an agreement between Modern and the New York State Department of Transportation. Modern alleges that, under that agreement, it was required to, and did, clean up the spill and repair the roadway, at a cost of $26,255.

On or about March 1, 2004, Modern notified Great Sing and Eveready that it would seek to recover the clean-up and repair costs it incurred as a result of Giarola's alleged negligence. On or about March 8, 2004, Eveready disclaimed coverage as to Great Sing and Modern for failure, inter alia, to provide timely notice under the policy. Two days after receiving Eveready's disclaimer letter, Great Sing notified its insurance broker of the accident. In November 2004, Modern commenced the main action against Great Sing and Giarola. The defendants, in turn, commenced a third-party action against Eveready to determine coverage. Insofar as is relevant to this appeal, Great Sing and Giarola moved, and Eveready cross-moved, for summary judgment in the third-party action, each seeking a declaration in its favor and against the other. The Supreme Court denied the motion and the cross motion. We reverse insofar as appealed from and grant Eveready's cross motion.

Where, as here, a policy of liability insurance requires that "prompt notice" of an accident or loss be given to the carrier, such notice must be given within a reasonable period of time. "[T]he insured's failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract" (Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742, 743 [citation and internal quotation marks omitted]).

A failure to give timely notice may be excused where the insured has a good-faith belief of nonliability, provided that belief is reasonable. However, "the insured's belief must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence. Additionally, the insured bears the burden of establishing the reasonableness of the proffered excuse" (Great Canal Realty Corp. v Seneca Ins. Co., supra at 744 [citation and internal quotation marks omitted]).

Under the circumstances of this case, we find that Great Sing's notice of claim, made nearly five months after the accident, was untimely as a matter of law (see Great Canal Realty Corp. v Seneca Ins. Co., supra; Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40; Zadrima v PSM Ins. Cos., 208 AD2d 529), and that Great Sing's belief that it could not legally be held liable for any damage to the LIE caused by the alleged negligence of its driver, was unreasonable as a matter of law (see Vehicle and Traffic Law §§ 388[1] and 1219). Accordingly, Eveready's cross motion should be granted.

Eveready's remaining contention - that its disclaimer against Great Sing was also [*3]effective against Modern - is unpreserved for appellate review and, in any event, bears no relevance to the narrow issue before us, which concerns only Great Sing's contractual rights under the subject policy - not Modern's independent statutory rights, if any, under the Insurance Law (see Insurance Law §§ 3420[a][3] and [b][1]; Zimmerman v Tower Ins. Co. of N.Y.,13 AD3d 137; see also Lauritano v American Fidelity Fire Ins. Co., 3 AD2d 564, affd, 4 NY2d 1028). Accordingly, we express no view as to the timeliness of Modern's notice of claim, or the effectiveness of Eveready's disclaimer of coverage as to that party.

We note that since the third-party action seeks, in part, a declaratory judgment, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment declaring that Eveready is not obligated to defend and/or indemnify the defendants in the main action.
FLORIO, J.P., SKELOS, FISHER and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Travelers Insurance Company v.  Utica Mutual Insurance Company

In an action, inter alia, for a judgment declaring that Utica Mutual Insurance Company is obligated to defend and indemnify the plaintiff Long Island Water Corporation in an action entitled Long v Long Island Water Corp., pending in the Supreme Court, Suffolk County, under Index Number 02-07671, (a) the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated February 2, 2005, as denied their cross motion for summary judgment declaring that the plaintiff Long Island Water Corporation was an additional insured on the date of the underlying accident on the general commercial liability policy issued by the defendant Utica Mutual Insurance Company for the benefit of nonparty Wire to Water, Inc., and declaring that the plaintiff Travelers Insurance Company and the defendant Utica Mutual Insurance Company were co-primary insurers of the plaintiff Long Island Water Corporation, and (b) the defendant Utica Mutual Insurance Company cross-appeals from so much of the same order as denied its motion for summary judgment.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant Matthew Long allegedly sustained injuries on July 3, 2001, while performing electrical work at the premises of the plaintiff Long Island Water Corporation [*2](hereinafter LI Water). Long was then working as an employee of nonparty Wire to Water, Inc. (hereinafter Wire), and he commenced an action to recover damages from LI Water (hereinafter the underlying action).

The plaintiffs LI Water and its insurer Travelers Insurance Company (hereinafter Travelers) instituted this action seeking a judgment declaring, inter alia, that the defendant Utica Mutual Insurance Company (hereinafter Utica) was obligated to defend and indemnify LI Water in the underlying action. They argued that LI Water was an "additional insured" under an "occurrence based" general commercial liability policy effective from January 24, 2001, to January 24, 2002 (hereinafter the Utica policy), issued by the defendant Utica to Wire, and that Utica was therefore required to defend and indemnify LI Water in the underlying action.

Utica moved, inter alia, for summary judgment contending that (1) pursuant to a certificate of liability insurance dated July 5, 2001 (hereinafter the certificate), LI Water was not named as an "additional insured" on the Utica policy until two days after Long's accident, and (2) the purchase order from LI Water to Wire did not specifically require Wire to name LI Water as an additional insured on the Utica policy. The plaintiffs cross-moved for summary judgment declaring that (1) LI Water was an additional insured on the Utica policy on the date of Long's accident, and (2) Travelers and Utica were co-primary insurers of LI Water. The Supreme Court denied both motions finding, inter alia, that questions of fact precluded a determination as to whether LI Water was an additional insured on the Utica policy on the date of Long's accident.

An ambiguity exists as to whether LI Water became an additional insured effective as of the date of the certificate, July 5, 2001, or the effective date of the Utica policy, January 24, 2001. Although the certificate only lists the effective dates of the Utica policy, January 24, 2001, to January 24, 2002, it does not specifically indicate the date on which it became effective (see State Farm Fire & Cas. Ins. Co. v Meis, 23 AD3d 372; Morrison-Knudsen Co. v Continental Cas. Co., 181 AD2d 500; cf. B.T.R. E. Greenbush v General Acc. Co., 206 AD2d 791, 792-793; Dryden Cent. School Dist. v Dryden Aquatic Racing Team, 195 AD2d 790,793). Nor is there evidence that an endorsement was ever issued specifically adding LI Water as an additional insured on the Utica policy (cf. ADF Constr. Corp. v Home Insulation & Supply, 237 AD2d 915). Additionally, a stipulation relied upon by the plaintiffs provides only that the certificate is binding, but does not resolve the effective date of the certificate. Further, although the March 11, 2001, purchase order from LI Water to Wire did not specifically obligate Wire to name LI Water as an additional insured on the Utica policy, correspondence from Travelers suggests that LI Water and Wire may have had an oral contract requiring Wire to name LI Water as an additional insured on the Utica policy. Thus, a question of fact exists as to whether the parties intended LI Water to be an additional insured throughout the period of the Utica policy (see Penske Truck Leasing Co. v Home Ins. Co., 251 AD2d 478, 479; cf. Stabile v Viener, 291 AD2d 395, 396). Accordingly, the Supreme Court correctly denied the motions and cross motions for summary judgment (see Flaherty v Cinar, 269 AD2d 421).

In light of our determination, we need not reach the parties' remaining contentions.
CRANE, J.P., KRAUSMAN, RIVERA and DILLON, JJ., concur. [*3]

ENTER:

James Edward Pelzer

Clerk of the Court

Simpson v. Feyrer

 

MEMORANDUM AND ORDER

Calendar Date: January 12, 2006
Before: Cardona, P.J., Crew III, Peters, Rose and Lahtinen, JJ.


Felt Evans, L.L.P., Clinton (Sean B. Virkler of
counsel), for appellants.
Finuacane & Hartzell, L.L.P., Pittsford (Thomas C.
Hartzell Jr. of counsel), for respondent.




Crew III, J.

Appeal from an order of the Supreme Court (Dowd, J.), entered December 27, 2004 in Otsego County, which denied a motion by defendants Stephen Feyrer and David Feyrer for summary judgment dismissing the complaint against them.

In February 1997, plaintiff, a college student, was struck by a motor vehicle operated by defendant Stephen Feyrer and owned by defendant David Feyrer (hereinafter collectively referred to as defendants) while crossing a street in the City of Oneonta, Otsego County. Thereafter, in January 2000, plaintiff commenced this action against defendants ^[FN1] contending that she sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result thereof. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint against them. Supreme Court denied that motion, and this appeal by defendants ensued. [*2]

Preliminarily, to the extent that plaintiff's pleadings may be read as asserting a serious injury claim under the 90/180-day category, plaintiff's own examination before trial testimony belies any such assertion. Although plaintiff did not attend class the day following the accident, she also did not seek medical treatment until approximately one week later. And, while plaintiff could not recall whether she attended classes the week following this initial visit to the local hospital emergency room, her testimony fails to disclose any significant or particularized gaps in her then school and/or employment schedule or daily activities. In short, inasmuch as the record fails to establish that plaintiff was unable to substantially perform all of her usual daily activities for 90 of the 180 days following the underlying accident, plaintiff cannot assert a serious injury claim under this particular category.

As to the balance of plaintiff's serious injury claim, the case law makes clear that where, as here, a plaintiff seeks to establish that he or she sustained a serious injury under either the permanent consequential limitation of use or the significant limitation of use categories, "the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]; see Gehrer v Eisner, 19 AD3d 851, 852 [2005]). Additionally, the plaintiff must demonstrate that the underlying limitations are more than "'mild, minor or slight'" (Paton v Weltman, 23 AD3d 895, 897 [2005], quoting Gehrer v Eisner, supra at 852). This plaintiff failed to do.

Plaintiff testified at her October 2002 examination before trial that following the accident, she experienced slurred speech, impaired memory and dizziness ^[FN2]. These symptoms apparently dissipated until plaintiff "relapsed" approximately one year later, at which point she again experienced dizziness and, additionally, photophobia. According to plaintiff, although she believes that she remains "more sensitive to light," the photophobia resolved itself as of the summer of 2001. As to the balance of her symptoms, plaintiff testified that although she suffers from migraines two or three times a week, which she did not experience prior to the accident, the visual disturbances associated therewith "petered out" and she no longer suffers from dizziness. Although plaintiff testified that she continues to experience "on and off" lower back pain and constant "discomfort" in her neck, she acknowledged that the neck discomfort did not impair her ability to move her neck. When questioned regarding the impact such symptoms have had on her activities, plaintiff testified only that some issue with her hip limits, to an unspecified degree, her ability to hike and jog as frequently as she would like. Finally, the record reflects that in the years following the accident, plaintiff graduated magna cum laude, moved to Colorado and obtained an apartment and gainful employment.

As to the medical proof tendered by plaintiff, the evaluation performed by her treating neurologist, David Smith, at best demonstrates that plaintiff's postaccident course "suggests that she sustained some kind of mild cerebral injury which effects [sic] her visual perception." Smith's assessment of plaintiff's condition, as well as his conclusory averment that she "sustained a permanent degree of post-concussive syndrome and photophobia," however, is of limited evidentiary value. Smith's evaluations of plaintiff occurred in May 1998 and June 1998, well [*3]before plaintiff's dizziness and photophobia, by her own admission, resolved, and there is nothing in his report to suggest, much less document, any degree of significant impairment and/or permanency, nor is there any qualitative analysis or discussion of how plaintiff's alleged limitations compare to normal cerebral functioning. Simply put, the record as a whole fails to establish that whatever residual effects plaintiff may continue to experience from the accident qualify as anything other than mild, minor or slight limitations and, as such, fall far short of demonstrating the degree of impairment necessary to meet the serious injury threshold. Accordingly, Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint.

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

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendants Stephen Feyrer and David Feyrer and complaint dismissed against them.

Footnotes

Footnote 1: Although Stephen Feyrer's employers also were named as party defendants, they did not join in defendants' motion and are not parties to the instant appeal.

Footnote 2: Notably, plaintiff denied hitting her head on the ground at the time of the accident.

 

All County Open MRI & Diagn. Radiology v. Travelers Insurance Co.

 

Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), dated October 19, 2004. The order denied plaintiff's motion for summary judgment without prejudice to renewal upon proper proof of medical necessity.

 

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law §
5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Contrary to the motion court's determination, plaintiff was not required to submit a physician's affidavit to establish medical necessity as part of its prima facie case, since medical necessity is established in the first instance by proof of submission of the claim form (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]). Defendant timely denied the claim on the ground of lack of medical necessity based on a peer review report appended to plaintiff's moving papers, wherein the peer reviewer stated, inter [*2]alia, that "a review of the records reveals no evidence of a thorough physical examination and history having been performed by the referring doctor," and that "[u]ntil such pertinent information is made available for my review reimbursement cannot be suggested."

Where an insurer's denial is based on a peer review, which concludes that there was no medical necessity due to "the lack of sufficient information" upon which the reviewer could make such determination, it fails to set forth an adequate factual basis and medical rationale and is thus deficient (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d at 96-97), without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists]). However, "[w]here . . the [peer review] report clearly indicates that the pertinent physician's reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer's opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the . . . medical treatment provided, the defendant insurer is not obligated to seek further verification . . . and such peer review is sufficient to raise an issue of fact precluding summary judgment in favor of [a] plaintiff [provider]" (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]).

In the instant case, the denial of claim form was, in effect, based on the lack of sufficient information, which, in the absence of a showing by defendant that it availed itself of the claim verification procedures for the purpose of conducting the peer review, precludes defendant from asserting the defense of lack of medical necessity (A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U], supra; Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, supra; cf. [*3]
Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U], supra).

Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: March 3, 2006