Coverage Pointers - Volume VII, No. 19

3/23/06            God's Battalion of Prayer Pentecostal Church v. Miele Associates
New York Court of Appeals

High Court Reiterates that an Arbitration Clause in an Unsigned Agreement is Enforceable When Parties Intended to be Bound by the Contract

The Court of Appeals holds that a party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' "clear, explicit and unequivocal" agreement to arbitrate.  In this case, although the Church did not sign the agreement, it was evident that it intended to be bound by it. The Church failed to refute the claim that after defendant forwarded the contract, both parties operated under its terms. Also, the Court points out, the complaint alleged that the defendant breached the agreement, so it relied on the very agreement that contains the arbitration clause it sought to disclaim. Finally, the Church did not assert that the arbitration clause would be unenforceable even if the agreement were signed. The Church is not allowed to pick and choose which provisions suit its purposes, disclaiming part of a contract while alleging breach of the rest.

 

 

3/23/06            Graber v. Bachman

Appellate Division, Third Department

Insufficient Proof to Withstand Serious Injury Motion when Claimed Injury is Exacerbation of Post Traumatic Stress Disorder

At the time of the accident, plaintiff was sleeping in a room approximately three to four feet from the impact. Plaintiff was awakened when she heard "[a] tremendous roaring, crashing, wood-splitting noise" which sounded like an explosion. When she went to assess the situation, she observed a hole where the truck struck the house and noted debris from hundreds of chickens that the truck was carrying. In opposition to a serious injury threshold motion, plaintiff proffered both her own affidavit and her bill of particulars indicating that she suffered from emotional distress which was an "exacerbation and/or acceleration of a prior existing post-traumatic stress disorder." In the absence of any expert proof, more was required.  It is undisputed that the truck struck a different part of the house from where plaintiff was sleeping and that only a picture fell off the wall in her room; she suffered no physical injury nor was she in danger of physical harm. Moreover, as plaintiff did not have a contemporaneous awareness of defendants' truck heading towards her home before its impact, no viable claim can be made that the accident was a traumatic event which placed her in imminent fear for her safety as mere observance of the negligently imposed physical damage to her home is insufficient to support her claim for emotional distress.

 

3/21/06            Bennett v. Genas

Appellate Division, First Department

Dismissal on Serious Injury Grounds where Plaintiff’s Doctors Unaware of Two Prior Accidents

Defendants made a prima facie showing that plaintiff did not sustain a serious injury within the permanent consequential limitation or significant limitation categories of Insurance Law § 5102(d).  The plaintiffs' reliance on the report and medical records of their neurologist, as well as the affirmations and reports of a physician, failed to raise a triable issue of fact since neither doctor indicated in their respective records, reports, or affirmations their awareness that the injured plaintiff was involved in two prior automobile accidents in which he sustained neck and back injuries. Therefore, their medical opinions that the subject accident caused the injuries observed by them were conclusory and speculative.

 

3/21/06            City of New York v. Zurich-American Insurance Group

Appellate Division, First Department

Insurer’s Failure to Promptly Challenge Reasonableness of Settlement of Underlying Action Precludes it from a Challenge in the Declaratory Judgment Action

In an underlying action to recover damages for sexual assault, plaintiff, City of New York, sought defense and indemnification as an additional insured under a policy issued by Zurich.  The City commenced an action for declaratory judgment that Zurich was required to defend and indemnify it, and successfully moved for summary judgment. Thereafter, the Appellate Division modified the trial court's order in the underlying action by granting the motion to strike the City's answer, on the ground that the City's noncompliance with the discovery requests was "willful and contumacious.”  Zurich contended that since the City was, in effect, forced to settle the underlying action as the result of its own contumacious conduct, the settlement is the equivalent of punitive damages. Zurich argued that requiring it to indemnify the City would violate New York's public policy against indemnifying punitive damages and would undermine the courts' ability to sanction recalcitrant litigants. The Appellate Division finds that there is no question that Zurich was obligated to defend and indemnify the City in the underlying action, and that it failed to do so. Therefore, the City was entitled to enter into a reasonable settlement of that case. There is also no question that Zurich participated in the underlying action by defending Varsity. Not only did Zurich fail to challenge the reasonableness of the settlement in that case, but it participated in, and agreed to, the settlement. Therefore, it may not challenge the reasonableness or nature of the settlement in this declaratory judgment action.

 

3/21/06            Holowacz v. Insurance Corporation of New York
Appellate Division, First Department

No Coverage where Policy Cancelled Prior to Accident

Carrier established its entitlement to judgment as a matter of law on the ground that the subject insurance policy was validly canceled prior to the accident (see Insurance Law § 3426).

 

3/21/06            Li H. Li v. Woo Sung Yun

Appellate Division, First Department

Dismissal on Serious Injury Grounds Amidst Absence of Range of Motion Restrictions and Six Year Treatment Gap

Defendants established that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In opposition, plaintiff did not submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in her spine or left knee. Also, the affirmed report of the plaintiff's physician, which was based on an examination conducted over six years after the plaintiff's last medical treatment, did not explain the lengthy gap in treatment and, therefore, was insufficient to raise a triable issue of fact.

 

3/21/06            Taylor v. Terrigno

Appellate Division, First Department

Defendant Successful on Serious Injury Motion Where Plaintiff Fails to Describe Nature of Limitations or Objective Tests

Defendant satisfied his initial burden on this serious injury motion.  Defendant submitted reports of an orthopedic surgeon, who found that plaintiff's neck and back were normal and that the status of her right shoulder was post-surgery with some residual stiffness and weakness, and a neurologist, who found no objective neurological disability or permanency and diagnosed plaintiff's condition as "subjective shoulder pain.” In opposition to the motion, plaintiff provided no description of the qualitative nature of plaintiff's limitations and did not identify the objective tests used in making a diagnosis (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). The new physician's affirmation that plaintiff submitted on her motion to renew was also deficient because, while it set forth measurements for loss of range of motion for plaintiff's right shoulder, it did not identify the objective tests performed in deriving those measurements and did not explain gaps in plaintiff's treatment.

 

 

3/17/06            Boorman v. Bowhers

Appellate Division, Fourth Department

Plaintiff Entitled to Summary Judgment on Serious Injury on Proof of Fracture

Unclear why the defendant appealed on this issue, but the plaintiff was entitled to summary judgment determining that he suffered a serious injury when there was an affidavit of a physician establishing that the plaintiff sustained a fracture to his ankle

 

3/17/06            Essex Insurance Company v. Zwick

Appellate Division, Fourth Department

Conduct of Bouncer in Restraining Patron Still Accident From Perspective of Bar, Under Commercial General Liability Policy

Plaintiff commenced this action seeking judgment declaring that it has no duty to defend or indemnify defendants T-Birds Nightclub in personal injury action commenced by Zwick. The CGL policy issued to T-Birds provides coverage for bodily injury caused by an "occurrence," which is defined as "an accident." "[F]rom the point of view of [T-Birds,] the insured" the  Court held that the incident resulting in injury to Zwick "was unexpected, unusual or unforeseen" and thus falls within the policy's coverage for claims of bodily injury arising out of an accidental occurrence.  In addition, carrier failed to establish as a matter of law that the assault and/or battery exclusion applies to the conduct of Holdsworth, a bouncer employed by T-Birds, in restraining Zwick. Even assuming that the assault and/or battery exclusion applies, court hold that the plaintiff failed to establish as a matter of law that its delay in providing notice of disclaimer of coverage was reasonable

 

3/17/06            Hahn v. Garrett

Appellate Division, Fourth Department

Firemen Entitled to Share of Insurance Tax Proceeds

Plaintiffs sought a declaration that the paid firefighters in the Town of Brighton were entitled to their pro rata share of the money paid to the Treasurer of the Brighton Fire District, pursuant to Insurance Law §§ 9104 and 9105. Those sections "provide that foreign and alien fire insurance companies and mutual fire insurance companies must pay a 2% tax on the amount of all premiums for insurance against loss or damage by fire, and that the money generated by the tax" shall be distributed in accordance with the provisions of those sections. "[I]n a fire department consisting of both paid and volunteer firemen, both the paid and the volunteer firemen are entitled to share in the distribution of foreign fire insurance tax moneys [sic]" (Ops St Comp No. 79-813 [1980]). The Court of Appeals has held that, "in the absence of an express legislative enactment precluding the paid firemen of a particular city from sharing in the insurance premium tax, all firemen in the locality [are] entitled to share ratably in the funds collected pursuant to the Insurance Law".

 

3/17/06            Klawiter v. CGU/OneBeacon Insurance Group

Appellate Division, Fourth Department

Date of Loss is Date of Occurrence Not Date of Accrual of Action

Insured commenced an action to recover under their homeowners policy for losses arising from damage to their personal property caused by mold at their residence. The Appellate Division affirms the Lower Court finding that dismissed the complaint as time-barred. Insurer met its initial burden by establishing that plaintiffs failed to commence this action within two years after the date of loss as required by the policy, and plaintiffs failed to raise a triable issue of fact. Contrary to the contention of the insured, the date of loss is the date of the catastrophe insured against not the accrual date of their cause of action against defendant.

 

3/17/06            New York State Dormitory Authority v. Scotsdale Insurance Company

Appellate Division, Fourth Department

Co-Primary Insurer Is Obligated to Provide Sole Primary Coverage up to the Amount of the Self-Insured Retention

The Lower Court held that Scottsdale Insurance Company is obligated to provide coverage to plaintiff on a co-insurance basis with General Star Indemnity Company. The Appellate Division agrees with the Supreme Court that the policies issued by Scottsdale and General Star are co-primary because the policies provide coverage for the same loss and contain identical "other insurance" clauses. But the Appellate Division modifies the Lower Court holding and finds that the court erred in declaring that Scottsdale was obligated to provide coverage to plaintiff on a co-insurance basis with General Star "only after the exhaustion of any self-insured retention or other deductible amounts." The Court holds that Scottsdale is obligated to provide sole primary coverage to defend and to indemnify plaintiff up to $100,000, the amount recited in the self-insured retention clause contained in the General Star policy, and is obligated to provide co-primary coverage with General Star with respect to any amount in excess of $100,000.

3/16/06            United Services Automobile Association v. Melendez

Appellate Division, First Department

Arbitration not Mandated on Policy issued out of State Where Minimum Coverage Met

The Court affirms the permanent stay of an uninsured motorist arbitration.The stay of arbitration was properly granted since the policy issued by the insurance carrier in Connecticut that covered the subject vehicle in which the respondents were passengers provided for arbitration only if both parties agreed. Here, although petitioner declined to arbitrate, the policy also contained uninsured motorist coverage sufficient to satisfy the requirements of Insurance Law § 5107. There is no requirement under the New York no-fault [and uninsured] statutes and regulations that mandates arbitration where, as here, a policy issued out of State meets the minimum
financial security requirements of Insurance Law § 5701.

 

3/14/06            Belsito v. State Farm Mutual Insurance Company

Appellate Division, Second Department

Duty to Defend Not Limitless

We cannot tell from the reported decision what kinds of allegations were made against the insured.  However, the Court noted that while the duty to defend is broad, it is not without limits.

Here, the record did not demonstrate that the allegations made in the underlying federal complaint potentially gave rise to a claim covered by the insurance policy at issue. Consequently, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment and properly granted the defendant's cross motion for summary judgment declaring that it did not have a duty to defend or indemnify the plaintiff in the underlying federal action.

 

 

3/14/06            Colon v. Vargas

Appellate Division, Second Department

Another “Serious Injury” Claim Bites the Dust
After the defendant submitted competent medical proof of examining physicians demonstrating that plaintiff did not suffer a serious injury, plaintiff failed to raise a triable issue of fact that she sustained a serious injury within the meaning of Insurance Law § 5102(d) to her mouth or jaw as a result of the subject accident. The medical reports relied upon by the plaintiff were “irrelevant to her claims,” according to the court and were not based upon a recent examination of the plaintiff  or did not causally relate any injuries to the subject accident.  Moreover, there was no competent medical evidence to support the plaintiff's claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident

 

3/14/06            Kouvaras v. Hertz Corporation

Appellate Division, Second Department

Defendant Fails to Present Objective Proof on Serious Injury Motion

Defendants failed to establish prima facie entitlement to summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmed medical reports of the defendants' examining physicians indicated that magnetic resonance imaging of the plaintiff's lumbar spine revealed disc bulges. The report of the defendants' orthopedist specified the degrees of range of motion in the plaintiff's lumbar spine without comparing those findings to the normal range of motion. Thus, the defendants' proof failed to objectively demonstrate that the plaintiff did not sustain a permanent consequential or significant limitation of the use of her lumbar spine as a result of the subject accident.

 

3/14/06            Madatova v. Madatov

Appellate Division, Second Department

Plaintiff Survives Serious Injury Motion where Defendant Fails to Quantify Exam Results or Address the Specific Claimed Injury

Defendant's examining orthopedist noted that the plaintiff had a torn right rotator cuff as evinced by magnetic resonance imaging examination of the plaintiff's right shoulder taken approximately one month after the accident. Concerning range of motion testing, the defendant’s doctor report merely stated that shoulder movements were "intact" when testing abduction, forward flexion, and internal and external rotation. There was no quantification of these results or comparison to their normal range of motion. Finally, the defendant's other examining doctor, a neurologist, never addressed the plaintiff's right shoulder in his examination. Therefore, defendant failed to meet his initial burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

 

3/14/06            State Farm Mutual Automobile Insurance Company v. Ellington

Appellate Division, Second Department

Permissive Use Found Despite Uncontradicted Testimony by Vehicle Owner

This was a CPLR Article 75 proceeding to permanently stay arbitration of an uninsured motorist claim. The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388 can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's consent.  The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use.  Where, as here,  the determination turns largely upon the credibility of a lone witness, the Supreme Court's resolution of the issues of the vehicle owner's credibility, and the weight to be given the evidence, was supported by the record.

 

3/14/06            Offman v. Singh

Appellate Division, First Department

Defendants’ Proof Not in Admissable Form and Failed to Address Objective Findings

Defendants' neurologist's submissions affirmed "the integrity" of each report and that each "is true to the best of my knowledge and information," failed to comply with CPLR 2106 which requires a physician's statement to be "affirmed . . . to be true under the penalties of perjury". Furthermore, the examining neurologist's reports failed to indicate what, if any, objective tests were employed to examine plaintiff and failed to address the objective findings of MRIs which showed a disc herniation at L4-5 and a bulge at C6-7.  Finally, the neurologist's report as to one plaintiff did not support an inference that his injuries related to a prior accident as the report did not indicate whether the doctor possessed any medical records relating to the first accident, which occurred four years earlier.

 

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.

 

3/21/06            In the Matter of the Arbitration between the Applicant and Respondent

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

Treating Physician’s Admission Of Pre-Existing Condition Necessitating Surgery Together With Similar Opinion From IME Physician Results In Denial Of Medical Bills For Cervical Spine Surgery.

Here is the Angle:     In this arbitration, that I argued on behalf of the insurer, there were a host of interesting issues.  Applicant’s cervical spine surgery, as well as the subsequent medical treatment, were denied on the basis that her treating physician and the IME physician’s opinions were in line regarding a pre-existing condition.  While we had quite an argument on the credibility of one IME physician’s opinion, due to his guilty plea to professional misconduct, the arbitrator found that his opinion was credible and balanced it with Applicant’s treating physician’s opinions.  Thereafter, the claims adjuster’s credibility was challenged when Applicant claimed that the claims adjuster assured her that the cervical spine surgery was pre-approved.  The arbitrator, after hearing the claims adjuster’s testimony, concluded that the training provided by the insurer and the general handling of no-fault claims reveal that opinions are not provided on pre-approval of a medical bill.

 

The Analysis:  This arbitration involved numerous issues over the credibility of the IME physician, who pled guilty to professional misconduct, as well as discussions the Applicant had with the claims adjuster regarding prior approval of a cervical spine surgery.  The Applicant sought $32,234.46 in medical bills and lost wages after undergoing cervical spine surgery.

 

On August 14, 2003, the Applicant was involved in a motor vehicle accident, which was one of three major accidents over the course of 10 years.

 

Applicant’s January 31, 1994, motor vehicle accident resulted in a C6/7 discectomy with anterior fusion.  Applicant also underwent a lumbar spine MRI on June 27, 1994, which revealed a L5/S1 posterolateral disc herniation on the right side.  Applicant’s treating physician noted on October 10, 1994, that Applicant presented with persistent back pain.  She was averse to surgical intervention.  However, if Applicant had a recurrence of severe sciatica he would be happy to reassess her for surgical removal of the herniated lumbar disc.

 

Applicant’s August 11, 1999, motor vehicle accident resulted in medical treatment for complaints of low back and bilateral leg pain.  The MRI of the lumbar spine revealed an L5/S1 left lateral disc herniation with moderate to severe narrowing of the left neural foramen.  Further, at L4/L5 there was narrowing of the thecal sac with degenerative disc disease.

 

A September 10, 1999, MRI of the cervical spine was conducted after Applicant complained of headaches and neck pain with bilateral upper extremity radiation since August 1999.  The MRI revealed the possibility of a demyelinating disease.  Moreover, the MRI revealed status post fusion of the C6/C7 vertebral bodies with spondylosis.  There were disc bulges at C3/4, C4/5, and C5/6, as well as at C7/T1. 

 

A September 21, 1999, MRI of the cervical spine revealed signal alterations of the spinal cord likely attributable to an improving contusion or edema.

 

On July 11, 2000, Applicant’s treating physician opined that a series of motor vehicle accidents and injuries to her spine resulted in cervical spine surgery.  He further opined that Applicant “now has degenerative changes at the levels above but her main complaint is related to her low back.  She is excessively obese and this is undoubtly a factor in her lower back symptoms.”  Applicant’s treating physician recommended surgical intervention only if she could decrease her weight.

 

After Applicant’s August 14, 2003, motor vehicle accident, she was provided with a benign diagnosis of cervical and lumbar disc disease and cerebral concussion with a physical therapy recommendation.  Thereafter, Applicant treated with a spinal surgeon who recommended and performed cervical spine surgery on December 13, 2004 at C4/5 and C5/6.  The spinal surgeon causally related the injury and resulting surgery 100% to the August 2003, motor vehicle accident.  An August 3, 2005, report from the spinal surgeon indicated that he previously erred in stating that Applicant only had mild spinal problems after her August 11, 1999, motor vehicle accident.  Rather, Applicant advised that her back pain was moderate to severe from the 1999 motor vehicle accident to the 2003 motor vehicle accident.  Thus, the spinal surgery was not 100% attributable to the 2003 motor vehicle accident.

 

The insurer denied the surgery as well as other medical bills associated with the surgery on the basis of two IMEs.  The first IME conducted on February 13, 2004, wherein the examining physician found that Applicant had cervical strain injury superimposed by a pre-existing underlying cervical degenerative disc disease together with surgical fusion at C6/7 related to the previous motor vehicle accident.  Also, Applicant had lumbar strain superimposed by a pre-existing lumbar degenerative disc disease.  The examining physician opined that since Applicant was not interested in surgical intervention that neurologic follow up for monitoring every 3 months for a 6 month period was appropriate.  Further, no further diagnostic testing was warranted since Applicant was not interested in surgical intervention.

 

The second IME was conducted shortly before the Applicant’s scheduled cervical spine surgery.  The examining physician, who Applicant pointed out during the first hearing was disciplined thus questioning his credibility, opined that Applicant had disc degeneration at C4/5 and C5/6 predating, by nine years of the 2003 motor vehicle accident.  He opined that Applicant was a good candidate for cervical spine surgery due to the degenerative disc disease, but that the reason for the surgery was unrelated to the 2003 motor vehicle accident.  The examining physician also conducted a peer review on January 10, 2005, wherein he opined that Applicant’s surgery was related to her pre-existing degenerative disc disease and not the 2003 motor vehicle accident.

 

There was a bit of argument regarding the credibility of the examining physician’s professional discipline.  However, Arbitrator McCorry found that the disciplinary measures taken against the physician did not impact on his credibility as an IME physician as his conclusions and opinions were balanced against the treating physician’s reports.

 

Further, even though Applicant’s treating spinal surgeon belatedly admitted his error on the percentage attributable to the 2003 motor vehicle accident he did not suggest an apportionment between the 1999 and 2003 accidents.

 

Arbitrator McCorry found that, although he questioned the motivation for the IME three days before surgery, the examining physician’s conclusions and opinions were in line with Applicant’s treating physicians, in that her need for surgery was due to her pre-existing condition.

 

Arbitrator McCorry denied the remainder of the medical bills at issue except for one bill which he found was not timely denied.

 

In addition, at the second hearing the claims adjuster testified in response to Applicant’s allegation that the claims adjuster pre-approved Applicant’s surgery.  Arbitrator McCorry found that the claims adjuster’s testimony was persuasive in that her training as well as the nature of no-fault claims handling indicates that opinions cannot be offered in advance regarding payment of medical bills.

 

Finally, Arbitrator McCorry denied Applicant’s lost wage claim as she failed to submit a computation of how the lost wage claim was computed.

 

3/21/06            In the Matter of the Arbitration between the Applicant and Respondent

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

Lost Wage Claim Denied To Applicant Who Was Awarded Social Security Benefits Attributed To Work Related Injury And On Basis of IME Regarding Lack of Injury Related To Accident.

Here is the Angle:      Applicant was not successful in arguing that the reason for his disability was due to a cognitive functioning disability related to the motor vehicle accident.  Rather, the IME physician’s opinion was more persuasive, that Applicant was not disabled because of accident but was already unemployed and disabled due to prior work related injury.  We note that our own William Chen, Esq. argued on behalf of the insurer.

 

The Analysis:  The issue in this arbitration was whether the Applicant’s lost wage claim was the result of injuries from a motor vehicle accident or his pre-existing work related injury.

 

Applicant was involved in a February 2, 2004, motor vehicle accident.  Thereafter, he complained of back pain and right wrist pain.

 

The Applicant, two months before the accident, filed a claim for Social Security Disability benefits after being involved in a serious tree trimmer work related accident.  At the time of the February 2004, motor vehicle accident, Applicant was receiving workers’ compensation benefits and was unemployed.

 

The Social Security Administrative Law Judge’s June 6, 2005, decision held, inter alia, that Applicant’s cognitive functioning ability was severe enough to meet the criteria for disability.

 

Applicant argued that the cognitive function disability was related to the motor vehicle accident and not the work related injury.

 

Arbitrator McCorry found in favor of the insurer based upon an IME wherein the examining physician concluded that the Applicant reached pre-accident status.  Further, the Applicant had degenerative conditions in his should and lumbar spine not related to the motor vehicle accident.  Finally, the examining physician found no disability because the Applicant was not working at the time of the accident.

 

 

3/9/06  In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Mary Anne Theiss, Esq. (Onondaga County)

Insurer’s Denial Upheld Based Upon Applicant’s Fraudulent Conduct.

 

Here is the Angle:      This is an interesting arbitration award upholding an insurer’s denial of an entire claim for no-fault benefits based upon fraudulent conduct, which is difficult to prove.

 

The Analysis:  On December 6, 2004, Applicant was involved in a rear-end motor vehicle accident.  Applicant told his treating physician that the impact was so severe that the seat was torn from its attachment to the floor.  The Applicant treated with a chiropractor and physical therapist with limited improvement.

 

In the arbitration, Applicant sought $12,851.22 in medical bills, lost wages, and other necessary expenses.

 

At the time of the accident, Applicant was the owner of Hanna Market, which sells imported Mediterranean foods.  Applicant’s wife’s business, Hanna Restaurant, was located in the same building.  Applicant’s foods were procured for the restaurant.  Applicant was the sole employee of his business.  He purportedly paid himself $600.00 per week, in cash, from his business’ cash register.

 

On November 28, 2004, Applicant and his wife applied for automobile liability insurance coverage through the Respondent based upon an offer Respondent made exclusively to AARP members.  The Respondent issued a temporary coverage binder effective until January 8, 2005, pending issuance of the insurance policy.  However, on December 16, 2004, Respondent learned that Applicant and his wife were not AARP members which violated an express condition of insurance coverage.  The Respondent issued a cancellation notice effective January 8, 2005.

 

Of course, Applicant was involved in a motor vehicle accident eight days after completing the AARP application.

 

Applicant submitted reimbursement requests to the Respondent for buying and delivering merchandise, clearing snow, and transportation to doctor’s appointments performed by a Mr. Sabbagh in the amount of $3,781.00.  Mr. Sabbagh told Respondent’s investigator that while he helped Applicant with services listed in the reimbursement request, Applicant never paid him.  Applicant testified at his examination under oath that he paid Mr. Sabbagh cash for these services and produced bills for services reflecting same.

 

Respondent’s investigator spoke with Mr. Sabbagh who admitted that he provided transportation to Applicant 2-3 times a week.  However, Applicant never paid him.  On occasion, Applicant would purchase items for Mr. Sabbagh at Sam’s Club.  Also, Mr. Sabbagh never cleared snow for Applicant. 

 

Interestingly, Applicant produced an affidavit from Mr. Sabbagh indicating that Mr. Sabbagh did not understand the statement he signed for Respondent’s investigator as he could not read or write English.  Furthermore, the affidavit indicated that Mr. Sabbagh was never paid for the services, but expected Applicant to pay him once he received money from no-fault.

 

In support of Applicant’s lost wage claim, he argued that he was unable to procure goods for the store but Mr. Sabbagh assisted him.  Thereafter, Applicant indicated that even though he was able to continue procuring goods for the store, the store stopped paying him.  Then he indicated that the goods were procured for the restaurant, but the restaurant stopped paying him as it did not have enough money to do so.  Interestingly, the Applicant also testified that he was working in the restaurant’s kitchen and also helping to run the restaurant.  When Applicant realized what he testified to he indicated that the restaurant could not afford to pay him as it was more expensive to obtain the goods through Mr. Sabbagh and to drive to Canada, Illinois, and New Jersey to obtain the goods.

 

In addition, Applicant provided Respondent’s investigator a statement on January 4, 2005, wherein he admitted that the Hanna Market closed approximately five days before their meeting.  Yet, Applicant testified at his examination under oath that the store closed the day after the accident. Also, Applicant indicated that his wife ran the restaurant continuously from the time it was opened.  Unfortunately, a US Attorney General’s office press release reported that Applicant’s wife was sentenced in Federal Court after being convicted of a credit card fraud scheme.  She was sentenced to one year and one day of prison immediately following her sentencing.  Thus, Applicant’s wife was incarcerated at the time of Applicant’s accident and could not possibly have been running the restaurant.

 

Overall, Arbitrator Theiss found that Applicant made numerous material misrepresentations of his claim to the insurer.  Accordingly, under Saks and Co. v. Continental Ins. Co., 23 NY2d 161 (1968), the insurance policy was vitiated precluding recovery thereunder.

 

 

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.

3/20/06            June M. Sullivan (Halloran & Sage, LLP)
South Carolina Supreme Court

Insurance Policy Did Not Provide Coverage For Accidental Discharge of Firearm

Decedent’s fatal injury did not arise out of the “ownership, maintenance, or use” of a motor vehicle as defined under state statute. Therefore, the insurance policy did not provide coverage for the accidental discharge of a shotgun that occurred during the unloading of firearms from a stationary, occupied vehicle, which had been used for hunting purposes the previous day. Plaintiff did not show that a causal connection existed between the pickup truck and the accidental shooting of Decedent. Consequently, the automobile insurance policy did not provide coverage for Decedent’s accidental death.

 

Submitted by: June M. Sullivan (Halloran & Sage, LLP

3/20/06            Gazis v. Miller
Supreme Court of New Jersey

In the Absence of “Appreciable Prejudice”, an Insurance Carrier that Provides an Occurrence-Based Excess Liability Insurance Policy Cannot Decline Coverage Based on the Insured’s Failure to Comply with the Policy’s 120-day Notice Requirement.
Where the excess insurance carrier does not show a materiality of the notice provision, the excess insurance company must show both a breach of the notice provision and a likelihood of appreciable prejudice in order to deny excess coverage to the insured when the insured fails to provide notice to the excess carrier within the time frame allowed under the policy. There is a strong public policy in favor of spreading the risk of protecting innocent victims of automobile accidents to primary and excess insurance carriers to enhance the amount of liability coverage available to protect such victims.

 

Submitted by: June M. Sullivan (Halloran & Sage, LLP)

3/16/06            Ace Property and Casualty Ins. Co. v. Federal Crop Ins. Corp., et al.
Eight Circuit Court of Appeals

Section 6912(e) of Federal Crop Insurance Reform and Department of Agriculture Act of 1994 Is Not Jurisdictional, But Insurers’ Failure to Exhaust Administrative Remedies Was Not Excused
Thirteen insurance carriers sued the Federal Crop Insurance Corporation (FCIC), alleging that the FCIC breached two provisions of the 1998 Standard Reinsurance Agreement (SRA), which is a statutorily codified contract between the FCIC and certain participating insurance providers. Specifically at issue were two provisions regarding Catastrophic Risk Protection. One, related to an administrative fee, and another regarding the Loss Adjustment Expenses, which permitted insurers to recoup a percentage of premium per CAT policy provided to a farmer. In 1998, and then in 2000, Congress enacted legislation that eliminated the right of private insurers to retain administrative fees, and that reduced the LAE reimbursement percentage. Disputes regarding the SRA are governed by the Federal Crop Insurance Reform and Department of Agriculture Act of 1994, 7 U.S.C. §§ 6901-7014 (1994). In February 2003, the insurers sued the United States government in the Court of Federal Claims for breach of contract, and unjust enrichment due to the reform legislation. The government moved to dismiss arguing that § 6912(e) required exhaustion of administrative remedies as a prerequisite to the court exercising subject matter jurisdiction, and that a federal district court had exclusive jurisdiction over the suits against the FCIC. The Federal Circuit affirmed the Federal Claims court and found that the federal district courts had exclusive jurisdiction. While the appeal was pending, the insurers filed an action against the FCIC in the Southern District of Iowa for breach of the 1998 SRA. The FCIC moved to dismiss for failure to exhaust administrative remedies as required by § 6912(e), and therefore lack of subject matter jurisdiction. The insurers responded that the federal district court could exercise jurisdiction, and that exhaustion would be futile because neither the FCIC nor the administrative board had the authority to order the relief sought. The district court dismissed the insurers’ complaint for failure to exhaust administrative remedies. The insurers appealed. The court of appeal found that the language of § 6912(e) was directed at “a person” and provides that a person shall exhaust administrative remedies, but no such language is directed at courts or at limiting the jurisdiction of federal district courts. The court stated “After reviewing the cases and comparing §6912(e) to other statutes we conclude that §6912(e) is nothing more than ‘a codified requirement of administrative exhaustion’ and is not jurisdictional.” The district court, therefore, had subject matter jurisdiction over the insurers’ complaint. The court then found that the insurers failed to demonstrate that pursing administrative remedies would be futile. The court affirmed the judgment of the district court that the insurers failed to show any applicable exception for their failure to exhaust administrative remedies.

 

Submitted by: Bruce D. Celebrezze & Supriya Sundarrajan (Sedgwick, Detert, Moran & Arnold LLP)

3/16/06            Smith v. McCarthy
Texas Court of Appeals, Second District

No Duty to Defend Under Title Insurance Policy In Dispute Regarding Ownership of Strip of Property
The parties-in-possession exclusion in a title insurance policy excepted coverage, and therefore relieved the insurer of a duty to defend. The court followed the eight-corners rule, looking at the allegations in the complaint and the insurance policy alone, and found that the exclusion was applicable, and therefore the insurer had no duty to defend. The trial court did not abuse its discretion in denying the claim for attorneys’ fees.

 

Submitted by: Bruce D. Celebrezze & Supriya Sundarrajan (Sedgwick, Detert, Moran & Arnold LLP)

 
3/15/06            Bruce Burney, et al v. Sphere Drake Insurance Company, et al
Fifth Circuit Court of Appeals

Reinstatement and Assignment of Judgment and Insurance Rights Improper
Final summary judgment granted to Sphere Drake was upheld by the Fifth Circuit Court of Appeals. Plaintiff in libel/slander/business disparagement case took assignment of insurance rights of insured defendant after a jury trial in the tort case and after a motion for new trial was granted by the judge in the underlying trial. The judge and parties sought to “reinstate” the judgment of the underlying lawsuit after the court’s plenary power had expired. The Fifth Circuit held that the judgment in the underlying lawsuit was not the product of a “fully adversarial” trial because the effect of the granting of a new trial was as if the underlying trial never occurred. Thus, the judgment for plaintiff against defendant could not be binding on the defendant’s insurer by plaintiff as defendant’s assignee.

 

Submitted by: Robert Shults (McFall, Sherwood & Breitbeil)

 

 

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Belsito v. State Farm Mutual Insurance Company

Bloom and Bloom, P.C., New Windsor, N.Y. (Kevin D. Bloom of
counsel), for appellant.
Rubin, Fiorella & Friedman, LLP, New York, N.Y. (Charles T.
Rubin and Paul Kovner of counsel), for
respondent.

In an action to recover damages for breach of contract and for a judgment declaring that the defendant is obligated to defend or indemnify the plaintiff in an underlying federal action pending in the United States District Court for the Southern District of New York, entitled Hudson Val. Webmasters v Belsito Communications, Civil Action No. 03 CV 8137, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Slobod, J.), dated December 16, 2004, which, upon an order of the same court dated August 6, 2004, denying his motion, inter alia, for summary judgment, and granting the cross motion of the defendant for summary judgment, declared that the defendant is not obligated to defend or indemnify the plaintiff in the underlying federal action.

ORDERED that the judgment is affirmed, with costs.

The duty of an insurer to defend is broader than the duty to indemnify (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663; Lehrer McGovern Bovis v Halsey Constr. Corp., 254 AD2d 335). "The duty of an insurer to defend its insured arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim" (Physicians' Reciprocal Insurers v Loeb, 291 AD2d 541, 542). The duty to indemnify on the part of an insurer requires a determination that the insured is liable for a loss that is covered by the policy (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419; Lehrer McGovern Bovis v Halsey Constr. Corp., supra). Generally, the [*2]burden is on the insured to establish coverage in the first instance (see Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208). Here, the record does not demonstrate that the allegations made in the underlying federal complaint potentially gave rise to a claim covered by the insurance policy at issue. Consequently, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment and properly granted the defendant's cross motion for summary judgment declaring that it did not have a duty to defend or indemnify the plaintiff in the underlying federal action.
MILLER, J.P., MASTRO, FISHER and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Boorman v. Bowhers

 

Appeal from an order of the Supreme Court, Wyoming County (Michael F. Griffith, A.J.), entered December 28, 2004 in a personal injury action. The order denied plaintiff's motion for partial summary judgment on the issues of serious injury, negligence and proximate cause.


LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (LUCILLE DADD ROBINSON OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BROWN & KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion with respect to the issue of serious injury and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when a vehicle driven by defendant crossed the center line of the highway and collided with the vehicle driven by plaintiff. We agree with plaintiff that Supreme Court erred in denying that part of his motion seeking partial summary judgment on the threshold issue whether he sustained a serious injury in the motor vehicle accident. A serious injury is defined in relevant part as a fracture (see Insurance Law § 5102 [d]; Kolios v Znack, 237 AD2d 333; Gonzalez v Brayley, 199 AD2d 1013). Plaintiff met his burden on that part of the motion by submitting the sworn report of a medical expert establishing that plaintiff fractured the lateral talus in his right ankle as a result of the accident. We thus modify the order accordingly.

We further conclude, however, that the court properly denied that part of plaintiff's motion seeking partial summary judgment on the issues of negligence and proximate cause. Although plaintiff met his initial burden on the motion by establishing that defendant's automobile crossed the center line of the highway and struck his vehicle (see Matte v Hall, 20 AD3d 898, 899-900; Wasson v Szafarski, 6 AD3d 1182), defendant raised a triable issue of fact by submitting evidence that she was confronted with an unanticipated emergency situation when her vehicle suddenly slid out of control due to the icy and snowy condition of the roadway (see generally Kizis v Nehring [appeal No. 1], ___ AD3d ___ [Mar. 17, 2006]; Sossin v Lewis, 9 AD3d 849, 850-851, amended on other grounds 11 AD3d 1045).
Entered: March 17, 2006
JoAnn M. Wahl
Clerk of the Court

 

Colon v. Vargas



Cheven, Keely & Hatzis, New York, N.Y. (Mayu Miyashita of
counsel), for appellant.
Ralph DeSena, New York, N.Y. (David R. Walton of
counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Cesar D. Zepeda appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated February 18, 2005, as denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him 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 cross motion is granted, upon searching the record, summary judgment dismissing the complaint insofar as asserted against the defendant Jose Vargas is granted, and the complaint is dismissed in its entirety.

Contrary to the Supreme Court's determination, the defendant Cesar D. Zapeda established his prima facie burden on his motion for summary judgment by showing that the plaintiff did not sustain a serious injury 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 Elyer, 79 NY2d 955). This burden was established by the submission of the reports of the examining neurologist and dentist, who found, inter alia, that the plaintiff had a normal range of motion of her mouth and that she did not have any disability causally related to the subject accident (see Kearse v New York City [*2]Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiff failed to raise a triable issue of fact that she sustained a serious injury within the meaning of Insurance Law § 5102(d) to her mouth or jaw as a result of the subject accident. The medical reports relied upon by the plaintiff were irrelevant to her claims, were not based upon a recent examination of the plaintiff (see Constantinou v Surinder, 8 AD3d 323; Kauderer v Penta, 261 AD2d 365, 366), or did not causally relate any injuries to the subject accident (see Shepley v Helmerson, 306 AD2d 267, 268).

Moreover, there was no competent medical evidence to support the plaintiff's claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident (see Sainte-Aime v Ho, 274 AD2d 569, 570; Arshad v Gomer, 268 AD2d 450).

Although the defendant Jose Vargas has not appealed, this court has the authority to search the record and grant summary judgment to a non-appealing party with respect to an issue that was the subject of the motion before the Supreme Court (cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430). Upon searching the record, we award summary judgment to Jose Vargas, dismissing the complaint insofar as asserted against him (see CPLR 3212[b]).
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Essex Insurance Company v. Zwick

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered September 7, 2004. The order, inter alia, denied plaintiff's motion seeking summary judgment.


CLAUSEN MILLER P.C., CHICAGO, ILLINOIS (CHIP G. SCHONEBERGER, OF THE ILLINOIS BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR PLAINTIFF- APPELLANT.
SPADAFORA & VERRASTRO, LLP, BUFFALO (RICHARD E. UPDEGROVE OF COUNSEL), FOR DEFENDANT-RESPONDENT ANDREW ZWICK.



It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action seeking judgment declaring that it has no duty to defend or indemnify defendants T-Birds Nightclub and Restaurant, Inc. (T-Birds), AGA Development Corp. and Kenneth Holdsworth in a personal injury action commenced against them by defendant Andrew Zwick. Supreme Court properly denied plaintiff's motion seeking summary judgment. The commercial general liability policy issued to T-Birds by plaintiff provides coverage for bodily injury caused by an "occurrence," which is defined as "an accident." "[F]rom the point of view of [T-Birds,] the insured" (Miller v Continental Ins. Co., 40 NY2d 675, 677), the incident resulting in injury to Zwick "was unexpected, unusual or unforeseen" (American Ref-Fuel Co. of Hempstead v Employers Ins. Co. of Wausau, 265 AD2d 49, 53; see Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145), and thus falls within the policy's coverage for claims of bodily injury arising out of an accidental occurrence (see Penn-America Group v Zoobar, Inc., 305 AD2d 1116, 1117, lv denied 100 NY2d 511; see also Liberty Mut. Ins. Co. v Ho, 289 AD2d 1051). Further, plaintiff failed to establish as a matter of law that the assault and/or battery exclusion applies to the conduct of Holdsworth, a bouncer employed by T-Birds, in restraining Zwick (see Anastasis v American Safety Indem. Co., 12 AD3d 628, 630; Essex Ins. Co. v T-Birds Nightclub & Rest., 229 AD2d 919, 920). Even assuming, arguendo, that the assault and/or battery exclusion applies, however, we conclude that plaintiff failed to establish as a matter of law that its delay in providing notice of disclaimer of coverage was reasonable (see generally Republic Franklin Ins. Co. v Pistilli, 16 AD3d 477, 479; Matter of Eagle Ins. Co. [Morel], 202 AD2d 1064).
Entered: March 17, 2006
JoAnn M. Wahl
Clerk of the Court


 

 

 

Hahn v. Garrett

 

Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered March 21, 2005. The judgment, among other things, granted in part plaintiffs' cross motion for summary judgment.


HARRIS BEACH PLLC, PITTSFORD (PETER J. SPINELLI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
CHAMBERLAIN D'AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (MATTHEW J. FUSCO OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS. It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by granting judgment in favor of plaintiffs as follows: It is ADJUDGED AND DECLARED that plaintiffs are entitled to share in the use and to participate in deciding the use of the two-percent funds received from the State of New York pursuant to Insurance Law §§ 9104 and 9105 and that the money received by defendants is to be held in trust for all firefighters


and as modified the judgment is affirmed without costs. [*2]

Memorandum: Plaintiffs commenced this action seeking, inter alia, a declaration that the paid firefighters in the Town of Brighton are entitled to their pro rata share of the money paid to defendant Lawrence M. Howk, as Treasurer of the Brighton Fire District, pursuant to Insurance Law §§ 9104 and 9105. Those sections "provide that foreign and alien fire insurance companies and mutual fire insurance companies must pay a 2% tax on the amount of all premiums for insurance against loss or damage by fire, and that the money generated by the tax" shall be distributed in accordance with the provisions of those sections (Pillig v Strange, 239 AD2d 568, 568, lv dismissed 90 NY2d 979; see Insurance Law § 9104 [a]; § 9105 [a] [1]; [b] [1]). Contrary to defendants' contention, Supreme Court properly granted that part of plaintiffs' cross motion for summary judgment on the first cause of action, determining that paid firefighters are entitled to their pro rata share of the two-percent funds. "[I]n a fire department consisting of both paid and volunteer firemen, both the paid and the volunteer firemen are entitled to share in the distribution of foreign fire insurance tax moneys [sic]" (Ops St Comp No. 79-813 [1980]). The Court of Appeals has held that, "in the absence of an express legislative enactment precluding the paid firemen of a particular city from sharing in the insurance premium tax, all firemen in the locality [are] entitled to share ratably in the funds collected pursuant to the Insurance Law" (Renn v Kimbark, 51 NY2d 189, 194-195; see Pillig, 239 AD2d at 569; City of Poughkeepsie v Poughkeepsie Associated Fire Dept., 125 AD2d 522, lv dismissed 69 NY2d 1038, appeal dismissed 80 NY2d 891; Wilcox v Schenck, 52 AD2d 349, 350-351).

Contrary to defendants' further contention, the entitlement of the paid firefighters to share in the two-percent funds is not based on the multiple fire companies distribution provision in Insurance Law § 9104 (a) (4) and § 9105 (d) (2) (E). None of the cases cited above wherein paid firefighters were awarded their pro rata share of the two-percent funds relied on sections 9104 (a) (4) or 9105 (d) (2) (E) as authority for the apportionment. Furthermore, the Office of the State Comptroller subsequently applied the reasoning of Renn to situations involving allocation of the two-percent funds between or among volunteer fire companies in a "multi-company fire district fire department" (Ops St Comp No. 89-53 [1989]).

We likewise conclude that the court properly ordered Howk, as the initial recipient of the two-percent funds from the State of New York, to "turn over" the paid firefighters' pro rata share of the two-percent funds to the Brighton Professional Firefighters Mutual Aid Fund (see Ops St Comp No. 90-20 [1990]; cf. Town of Mamaroneck Professional Firefighters Assn. v Volunteer & Exempt Firemen's Benevolent Assn. of Town of Mamaroneck, N.Y., 292 AD2d 375, 376). Inasmuch as plaintiffs submitted affidavits from paid firefighters stating that only volunteer firefighters previously had benefitted from the two-percent funds, the court properly appointed a referee to hear and determine "plaintiffs' claim that the two percent monies for 2002 to the present were used to benefit only the volunteer firefighters ...."

Finally, we conclude that the court should have declared the rights of the parties, and we therefore modify the judgment accordingly.
Entered: March 17, 2006
JoAnn M. Wahl
Clerk of the Court


 

Klawiter v. CGU/OneBeacon Insurance Group

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered January 11, 2005. The order granted defendant's motion for summary judgment dismissing the complaint.


JAMES F. ALLEN, PLLC, BUFFALO (JAMES F. ALLEN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
RICHARD P. PLOCHOCKI, SYRACUSE, FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover under their homeowners policy for losses arising from damage to their personal property caused by mold at their residence. Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint as time-barred. Defendant met its initial burden by establishing that plaintiffs failed to commence this action within two years after the date of loss as required by the policy, and plaintiffs failed to raise a triable issue of fact (see Enright v Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981; Compis Servs. v Hartford Steam Boiler Inspection & Ins. Co., 272 AD2d 886, 887). Contrary to the contention of plaintiffs, the date of loss is "the date of the catastrophe insured against," not the accrual date of their cause of action against defendant (Costello v Allstate Ins. Co., 230 AD2d 763, 763; see Roberts v New York Prop. Ins. Underwriting Assn., 253 AD2d 807).
Entered: March 17, 2006
JoAnn M. Wahl
Clerk of the Court

 

Kouvaras v. Hertz Corporation

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated December 15, 2004, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and denied her cross motion for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants' separate motions 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) and substituting therefor a provision denying those motions; as so modified, the order is affirmed, without costs or disbursements, and the complaint is reinstated.

The defendants failed to establish their prima facie entitlement to summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmed medical reports of the defendants' examining physicians indicated that [*2]magnetic resonance imaging of the plaintiff's lumbar spine revealed disc bulges. Notably, the report of the defendants' orthopedist specified the degrees of range of motion in the plaintiff's lumbar spine without comparing those findings to the normal range of motion. Thus, the defendants' proof failed to objectively demonstrate that the plaintiff did not sustain a permanent consequential or significant limitation of the use of her lumbar spine as a result of the subject accident (see Baudillo v Pam Car & Truck Rental, Inc., 23 AD3d 420; Aronov v Leybovich, 3 AD3d 511). Therefore, we need not consider the sufficiency of the plaintiff's opposition papers (see Facci v Kaminsky, 18 AD3d 806; Rich-Wing v Baboolal, 18 AD3d 726; Hanna v Alverado, 16 AD3d 624).

The plaintiff's cross motion for summary judgment on the issue of liability was correctly denied. While the plaintiff established her prima facie entitlement to judgment as a matter of law, the defendants raised a triable issue of fact, through the plaintiff's own deposition testimony, as to whether she used reasonable care to avoid the subject accident (see Shea v Judson, 283 NY 393).
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Madatova v. Madatov

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated June 1, 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 meet his initial burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The defendant's examining orthopedist noted in his affirmed medical report that the plaintiff, inter alia, had a torn right rotator cuff as evinced by magnetic resonance imaging examination of the plaintiff's right shoulder taken approximately one month after the accident. Notably, the report of the defendant's examining orthopedist merely stated, concerning range of motion testing, that shoulder movements were "intact" when testing abduction, forward flexion, and internal and external rotation. The defendant's examining orthopedist did not quantify these results or compare them to the normal range of motion (see Aronov v Leybovich, 3 AD3d 511, 512). The [*2]defendant's other examining doctor, a neurologist, never addressed the plaintiff's right shoulder in his examination. Thus, the defendant's proof failed to objectively demonstrate that the plaintiff did not sustain a serious injury to her right shoulder as a result of the subject accident. Since the defendant failed to meet his prima facie burden, the sufficiency of the plaintiff's opposition papers need not be considered (see Facci v Kaminsky, 18 AD3d 806; Rich-Wing v Baboolal, 18 AD3d 726; Aronov v Leybovich, supra).
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

State Farm Mutual Automobile Insurance Company v. Ellington

 

In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Allstate Insurance Company and Castina Reid appeal from a judgment of the Supreme Court, Queens County (Rios, J.), entered August 22, 2005, which, after a hearing, granted the petition and directed Allstate Insurance Company to defend and indemnify Castina Reid in any lawsuit brought against her for injuries sustained by Mark Ellington arising from a June 15, 2001 accident, and Mark Ellington separately appeals from so much of the same judgment as granted the petition.

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

The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388, can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's consent (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704). The uncontradicted testimony of a vehicle owner that the vehicle was [*2]operated without his or her permission, does not, by itself, overcome the presumption of permissive use (see Matter of General Acc. Ins. Co. v Bonefont, 277 AD2d 379).

"The determination of the fact-finding court should not be disturbed on appeal unless its conclusions could not be reached on any fair interpretation of the evidence, especially where, as here, the determination turns largely upon the credibility of the lone witness" (Matter of New York Cent. Mut. Fire Ins. Co. v Accardo, 298 AD2d 459; see Matter of CGU Ins. Co. v Velez, 287 AD2d 624). Here, the Supreme Court's resolution of the issues of the vehicle owner's credibility, and the weight to be given the evidence, is supported by the record and will not be disturbed on appeal (see Matter of General Acc. Ins. Co. v Bonefont, supra).
MILLER, J.P., LUCIANO, LUNN and DILLON, JJ., concur.

 

United Services Automobile Association v. Melendez

 

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 23, 2004, which granted petitioner insurer's application to permanently stay an uninsured motorist arbitration demanded by respondents, unanimously affirmed, without costs.

The stay of arbitration was properly granted since the policy issued by petitioner in Connecticut covering the car in which respondents were passengers provided for arbitration only if both parties agreed. Here, although petitioner declined to arbitrate, the policy also contained uninsured motorist coverage sufficient to satisfy the requirements of Insurance Law § 5107. "[T]here is no requirement under the New York no-fault [and uninsured] statutes and regulations that mandates arbitration where, as here, a policy issued out of State meets the minimum
financial security requirements of Insurance Law § 5701" (Matter of State Farm Ins. Co. v Torcivia, 277 AD2d 321 [2000]).

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

ENTERED: MARCH 16, 2006

CLERK

 

New York State Dormitory Authority v. Scotsdale Insurance Company

 

Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered April 19, 2005. The judgment, among other things, adjudged that defendant Scottsdale Insurance Company is obligated to provide coverage to plaintiff on a co-insurance basis with General Star Indemnity Company.


DAMON & MOREY LLP, BUFFALO (HEDWIG M. AULETTA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HODGSON RUSS LLP, BUFFALO (JONATHAN A. MUGEL OF COUNSEL), FOR DEFENDANT-RESPONDENT SCOTTSDALE INSURANCE COMPANY.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by amending the declaration to provide as follows: It is

ADJUDGED AND DECLARED that defendant Scottsdale Insurance Company is obligated to provide sole primary coverage to defend and to indemnify plaintiff up to $100,000 and is obligated to provide co-primary coverage with General Star Indemnity Company with respect to any amount in excess of $100,000 and as modified the judgment is affirmed without costs.

Memorandum: We agree with Supreme Court that the policies issued by defendant Scottsdale Insurance Company (Scottsdale) and General Star Indemnity Company (General Star) are co-primary because the policies provide coverage for the same loss and contain identical "other insurance" clauses. We further conclude, however, that the court erred in declaring that Scottsdale is obligated to provide coverage to plaintiff on a co-insurance basis with General Star "only after the exhaustion of any self-insured retention or other deductible amounts." Rather, we conclude that Scottsdale is obligated to provide sole primary coverage to defend and to indemnify plaintiff up to $100,000, the amount recited in the self-insured retention clause contained in the General Star policy, and is obligated to provide co-primary coverage with General Star with respect to any amount in excess of $100,000. We therefore modify the judgment accordingly.

 

Entered: March 17, 2006
JoAnn M. Wahl
Clerk of the Court

 

Offman v. Singh

 

 
Goidel & Siegel, LLP, New York (Andrew B. Siegel of
counsel), for appellants.
Norman Volk & Associates, P.C., New York (Holly E. Peck of
counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 19, 2005, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and denied as moot plaintiffs' cross motion for partial summary judgment as to liability, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated, the denial of the cross motion vacated and the cross motion remanded for determination.

On June 6, 2002, plaintiffs were in a car which was struck by a vehicle operated by defendant Singh and owned by defendant Hi-Teck Auto S. Management while plaintiffs were allegedly stopped at a stop sign. Defendants moved for summary judgment to dismiss plaintiffs' complaint on the ground that neither suffered a serious injury within the meaning of Insurance Law § 5102(d). Plaintiffs cross-moved for partial summary judgment as to liability. The court improperly granted defendants' motion as they failed to submit proof in admissible form sufficient to meet their burden of establishing a prima facie entitlement to summary judgment (see Nix v Yang Gao Xiang, 19 AD3d 227 [2005]).

Defendants' neurologist's submissions, wherein she affirmed "the integrity" of each report and that each "is true to the best of my knowledge and information," fail to comply with CPLR 2106 which requires a physician's statement to be "affirmed . . . to be true under the penalties of perjury" (see Gilphilin v Hanson, 205 AD2d 353 [1994]; McLoyrd v Pennypacker, 178 AD2d 227 [1991], lv denied 79 NY2d 754 [1992]; see also Tattegrain v New York City Tr. Auth., 2002 NY Misc LEXIS 820 [App. Term 2d Dept 2002] [affirmation in which doctor affirmed "to the best of my knowledge the statements contained in this report are true" insufficient to satisfy CPLR 2106]). That plaintiffs' doctor's affirmation in their responsive papers may have suffered from the same infirmity is of no consequence. Because defendants failed to make a prima facie showing their motion must be denied, regardless of the claimed insufficiency of the opposing papers
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Diaz v Nunez, 5 AD3d 302 [2004]).

Assuming arguendo that the neurologist's reports were competent, defendants [*2]nonetheless failed to meet their threshold burden. The examining neurologist's reports failed to indicate what, if any, objective tests were employed to examine plaintiff Emma Offman's hearing, and they failed to address the objective findings of plaintiff Jose Offman's MRIs which showed a disc herniation at L4-5 and a bulge at C6-7 (see Nix, supra). Moreover, the neurologist's report as to plaintiff Jose Offman does not support an inference that his injuries related to a prior accident as the report does not indicate whether the doctor possessed any medical record relating to the first accident, which occurred four years earlier (see Webb v Johnson, 13 AD3d 54 [2004]).

Since the motion court granted defendants' motion on the threshold question of serious injury, it did not reach the merits of plaintiffs' cross motion for partial summary judgment as to liability. Accordingly, we vacate the denial of the cross motion and remand for the motion court to consider the cross motion on the merits.

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

ENTERED: MARCH 14, 2006

CLERK

 

Taylor v. Terrigno

 

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered November 23, 2004, which granted defendant's motion for summary judgment dismissing the complaint, and order, same court and Justice, entered June 6, 2005, which denied plaintiff's motion to renew, unanimously affirmed, without costs.

Defendant satisfied his initial burden on the motion of demonstrating, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). He submitted the reports of an orthopedic surgeon, who found that plaintiff's neck and back were normal and that the status of her right shoulder was post-surgery with some residual stiffness and weakness, and a neurologist, who found no objective neurological disability or permanency and diagnosed plaintiff's condition as "subjective shoulder pain" (see Smith v Brito, __ AD3d __, 804 NYS2d 82 [2005]). In opposition to the motion, plaintiff, who did not plead or attempt to prove that she sustained a serious injury under the 90/180-day category, failed to meet her burden of raising a material issue of fact (see id.) with the medical submissions that contained no numerical ranges of motion, did not describe the qualitative nature of plaintiff's limitations and did not identify the objective tests used in making a diagnosis (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). The new physician's affirmation that plaintiff submitted on her motion to renew was also deficient because, while it set forth measurements for loss of range of motion for plaintiff's right shoulder, it did not identify the objective tests performed in deriving those measurements (see Brown v Dunlap, 6 AD3d 159, 160-161 [2004], revd on other grounds sub nom. Pommells v Perez, 4 NY3d 566, 575-578 [2005]). Accordingly, the motion to renew was properly denied (CPLR 2221[e][2]). Unexplained gaps in plaintiff's treatment are also fatal to her claim of serious
injury (see Pommells, 4 NY3d 566, 574 [2005]; Agramonte v Marvin, 22 AD3d 322 [2005]).

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

ENTERED: MARCH 21, 2006

CLERK

 

Bennett v. Genas

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated October 21, 2004, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Lawrence O. Bennett did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that Lawrence O. Bennett (hereinafter the injured plaintiff) did not sustain a serious injury within the permanent consequential limitation or significant limitation categories 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 failed to raise a triable issue of fact. The plaintiffs' reliance on the report and medical records of Dr. Manlapaz, a neurologist, as well as the affirmations and reports of Dr. George, a physician, failed to raise a triable issue of fact since neither doctor indicated in their respective records, reports, or affirmations their awareness that the injured plaintiff, Lawrence O. Bennett (hereinafter the injured plaintiff), was involved in two prior automobile accidents in 1978 and 1995, in which he sustained, inter alia, neck and back injuries. Therefore, their medical opinions that the subject accident caused the injuries observed by them were conclusory and speculative (see Allyn v Hanley, 2 AD3d 470; Ifrach v Neiman, 306 AD2d 380; Ginty v MacNamara, 300 AD2d 624). The plaintiffs' reliance on the medical reports of Jeffrey Pracella, a chiropractor, is also misplaced. While Dr. Pracella [*2]acknowledged that the injured plaintiff was involved in two prior accidents, his June 25, 2001, report stated that the plaintiff did not suffer from any current disabilities. Moreover, neither Pracella's June 25, 2001, report, nor his November 5, 2001, report stated that any of the injured plaintiff's injuries were significant or permanent in nature (see Ibragimov v Hutchins, 8 AD3d 235).

The reports and records of Ronald Manoni, a chiropractor, also failed to raise a triable issue of fact. Although Manoni had recently evaluated the injured plaintiff, he failed, both in his July 19, 2004, report, and in his previous reports and records, to adequately quantify the alleged range of motion limitations of the injured plaintiff's cervical spine or lower back (see Manceri v Bowe, 19 AD3d 462; see also Claude v Clements, 301 AD2d 554; cf. Mazo v Wolofsky, 9 AD3d 452; Aronov v Leybovich, 3 AD3d 511). Moreover, a 2½-year gap between the conclusion of the injured plaintiff's treatment by Manoni and his most recent examination was not adequately explained (see Pommells v Perez, 4 NY3d 566; Sibrizzi v Davis, 7 AD3d 691; cf. Black v Robinson, 305 AD2d 438). Thus, the Supreme Court correctly granted the defendants' 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).
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur.

 

City of New York v. Zurich-American Insurance Group

Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito,
S. Dwight Stephens, and Paul F. McAloon of counsel), for
appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Francis F. Caputo and Susan Paulson
of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the defendant, Zurich-American Insurance Group, is required to defend and indemnify the plaintiff, the City of New York, in an underlying action to recover damages for sexual assault, the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated October 22, 2004, which denied the defendant's motion for leave to amend its answer and for summary judgment, and granted the plaintiff's cross motion for an award of attorney's fees.

ORDERED that the order is affirmed, with costs.

In an underlying action to recover damages for sexual assault, the plaintiff, City of New York, sought defense and indemnification as an additional insured under a policy issued by the defendant, Zurich-American Insurance Group (hereinafter Zurich), to the City's codefendant, Varsity Transit, Inc. ( hereinafter Varsity). Zurich provided counsel for Varsity, but ignored the City's repeated requests for counsel, and the City undertook its own defense. In the course of that litigation, the City ignored repeated discovery orders, and the plaintiff and Varsity moved to strike the City's answer. That motion was denied, and the movants appealed the order denying the motion.

Meanwhile, the City commenced this action for a judgment declaring that Zurich was required to defend and indemnify it, and successfully moved for summary judgment. Shortly [*2]thereafter, this court modified the trial court's order in the underlying action by, inter alia, granting the motion to strike the City's answer, on the ground that the City's noncompliance with the discovery requests was "willful and contumacious," and remitted the matter to the trial court for an inquest on damages (see Mendez v City of New York, 7 AD3d 766, 767). Zurich then moved for leave to amend its answer and for summary judgment in this action on the ground that the City's noncompliance in the underlying action amounted to a breach of its continuing duty to act in good faith, and therefore relieved Zurich of the duty to defend and indemnify it. The City cross-moved to recover attorney's fees expended defending itself against Zurich's motions. Soon thereafter, the City and Varsity settled the underlying action for $1,066,666.67, with the City reserving its right to recover its contribution from Zurich. Thereafter, the trial court in this action denied Zurich's motion for leave to amend its answer and for summary judgment and granted the City's motion for attorney's fees.

Zurich contends that since the City was, in effect, forced to settle the underlying action as the result of its own contumacious conduct, the settlement is the equivalent of punitive damages. As such, Zurich argues that requiring it to indemnify the City would violate New York's public policy against indemnifying punitive damages and would undermine the courts' ability to sanction recalcitrant litigants.

"[W]here an insurer unjustifiably refuses to defend a suit, the insured may make a reasonable settlement or compromise of the injured party's claim, and is then entitled to reimbursement from the insurer" (internal quotation marks omitted) (Isadore Rosen & Sons v Security Mut. Ins. Co. of N.Y., 31 NY2d 342, 347; American Ref-Fuel Co. of Hempstead v Resource Recycling, 281 AD2d 573). Where an insurer is involved in the underlying proceeding yet fails to challenge the reasonableness of the settlement there, it may not do so in a separate declaratory judgment action (see Serio v Public Serv. Mut. Ins. Co., 7 AD3d 277; Tishman Constr. Corp. of N.Y. v American Mfrs. Mut. Ins. Co., 303 AD2d 323). There is no question that Zurich was obligated to defend and indemnify the City in the underlying action, and that it failed to do so. Therefore, the City was entitled to enter into a reasonable settlement of that case. There is also no question that Zurich participated in the underlying action by defending Varsity. Not only did Zurich fail to challenge the reasonableness of the settlement in that case, but it participated in, and agreed to, the settlement. Therefore, it may not challenge the reasonableness or nature of the settlement in this declaratory judgment action. Therefore, because the theory upon which Zurich based its motion for leave to amend its answer was clearly without merit, the motion was properly denied (see Washington Ave. Assocs. v Euclid Equip., 229 AD2d 486, 487-488). For the same reason, Zurich failed to sustain its initial burden of demonstrating its entitlement to judgment as a matter of law (see American Ref-Fuel Co. of Hempstead v Resource Recycling, 281 AD2d 573, supra).

Regarding the City's cross motion for an award of attorney's fees, an insured is generally not entitled to recover expenses incurred in bringing an action for a declaration of coverage, unless "he [or she] has been cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations" (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21). Here, Zurich's motions, filed after the court had already awarded summary judgment in favor of the City, put the City in a defensive posture, and the City therefore was entitled to recover its attorney's fees (see Hurney v Mattson, 59 AD2d 934).
SCHMIDT, J.P., SANTUCCI, MASTRO and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Holowacz v. Insurance Corporation of New York

In an action, inter alia, pursuant to Insurance Law § 3420 to recover the proceeds of an insurance policy issued to Daisy-Drew Construction Corp., against which the plaintiffs secured a default judgment, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated June 1, 2005, as denied that branch of their motion which was for summary judgment against the defendant Insurance Corporation of New York and granted that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against it.

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

The defendant insurance carrier established its entitlement to judgment as a matter of law on the ground that the subject insurance policy was validly canceled prior to the accident (see Insurance Law § 3426; Bullock v Hanover Ins. Co., 144 AD2d 416; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U]; see also Cherry Hill Textiles v Insurance Co. Of State of Pa., 276 AD2d 519). In opposition, the plaintiffs failed to establish the existence of a triable issue of fact.

The plaintiffs' remaining contentions are without merit (see Allstate Ins. Co. v Raguzin, 12 AD3d 468, 469; Wainwright v Charles Constr. Co., 302 AD2d 784, 785; Tantillo v U.S. [*2]Fed. & Guar. Co., 155 AD2d 970, 971; see also Zappone v Home Ins. Co., 55 NY2d 131).
FLORIO, J.P., RITTER, GOLDSTEIN and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

 

Li H. Li v. Woo Sung Yun

 

In an action to recover damages for personal injuries, the defendant Woo Sung Yun appeals, as limited by his brief, from so much of an order of Supreme Court, Kings County (Knipel, J.), dated January 19, 2005, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendants Kuen Tak Wong and Wai Lin Cheung separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground, inter alia, 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 one bill of costs to the defendants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed. [*2]

The defendants 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; Giraldo v Mandanici, 24 AD3d 419; Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiff did not submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in her spine or left knee (see Nemchyonok v Peng Liu Ying, 2 AD3d 421; Ifrach v Neiman, 306 AD2d 380; Pajda v Pedone, 303 AD2d 729; Lanza v Carlick, 279 AD2d 613; Passarelle v Burger, 278 AD2d 294). Also, the affirmed report of the plaintiff's physician, which was based on an examination conducted over six years after the plaintiff's last medical treatment, did not explain the lengthy gap in treatment and, therefore, was insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury (see Pommells v Perez, 4 NY3d 566; Ali v Vasquez, 19 AD3d 520; Batista v Olivo, 17 AD3d 494).

In light of out determination, we need not reach the remaining contention of the defendants Wai Lin Cheung and Kuen Tak Wong.
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

God's Battalion of Prayer Pentecostal Church v. Miele Associates


 

On this appeal, we reiterate our long-standing rule that an arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the [*2]parties intended to be bound by the contract. We conclude that the lower courts properly directed that this matter proceed to arbitration.

Plaintiff-appellant God's Battalion of Prayer Pentecostal Church, Inc. operates a church and school on Linden Boulevard in Brooklyn. In May 1995, the Church hired defendant Miele Associates, L.L.P., a firm of architects, to undertake expansion and renovation of the Church's facilities. Miele prepared an agreement between the parties, dated May 1995 (on a "Standard Form of Agreement between Owner and Architect" published by the American Institute of Architects), and forwarded it to the Church, which retained it, unsigned. The agreement contained an arbitration clause providing that "[a]ll claims, disputes, and other matters in question arising out of or relating to this agreement or the breach thereof, shall be decided by arbitration."

In its complaint, the Church alleges that at Miele's behest it hired Ropal Construction Corp. as general contractor. When Ropal did not perform to the Church's satisfaction, it initiated a Supreme Court action against Miele, asserting breach of contract and architectural malpractice. The contract on which the Church relies contains the very arbitration clause at issue ^[FN1]. Indeed, the Church's complaint expressly claims that Miele "failed to perform the terms, covenants and conditions of the agreement."

Miele moved for an order permanently staying the action and compelling the parties to proceed to arbitration. In opposition, the Church asserted that neither party executed the agreement and that there had been no meeting of minds regarding arbitration. Supreme Court, upon reargument, directed that the matter proceed to arbitration. The Appellate Division affirmed, as do we. [*3]

Although CPLR § 7501 confers jurisdiction on courts to enforce written arbitration agreements, "[t]here is no requirement that the writing be signed so long as there is other proof that the parties actually agreed on it" (Crawford v Merrill Lynch, Pierce, Fenner & Smith, Inc., 35 NY2d 291, 299 [1974]; see also Flores v Lower East Side Service Center, Inc., 4 NY3d 363, 370 [2005]). A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' "clear, explicit and unequivocal" agreement to arbitrate (Matter of Waldron [Goddess], 61 NY2d 181, 183-184 [1984]), but our case law makes it clear that there is no requirement of a signature.

Although the Church did not sign the Miele agreement, it is evident that it intended to be bound by it. The Church has not successfully refuted Miele's claim that, after Miele forwarded the contract, both parties operated under its terms. Most tellingly, the Church's complaint alleges that Miele breached their agreement, thereby acknowledging and relying on the very agreement that contains the arbitration clause it seeks to disclaim. Moreover, the Church does not assert that the arbitration clause would be unenforceable even if the agreement were signed. That being so, it may not pick and choose which provisions suit its purposes, disclaiming part of a contract while alleging breach of the rest. A contract "should be read to give effect to all its provisions" (Mastrobuono v Shearson Lehman Hutton, 514 US 52, 63 [1995]; see also Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46 [1956]). The lower courts therefore correctly ruled that this matter proceed to arbitration.

We have considered appellant's remaining contentions and find them without merit. Accordingly, the order of the Appellate Division should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Rosenblatt. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.
Decided March 23, 2006

Footnotes

Footnote 1: The record contains two written agreements pertaining to the work: the unsigned agreement between the Church and Miele, dated May 1995, and a signed agreement, between the Church and Ropal, dated August 29, 1996. Miele was not a party to the latter agreement. The Court therefore takes the Church's complaint to rest on the May 1995 agreement, in so far as it asserts that Miele "failed to perform the terms, covenants and conditions of the agreement" and on the August 29, 1996 agreement in so far as it asserts that Ropal "failed to comply with the terms, covenants and conditions of its agreement." While the Church now argues that there was a controlling parallel oral agreement, the lower courts correctly concluded that the parties intended to be bound by the terms of the written contracts.


 

Graber v. Bachman

 

MEMORANDUM AND ORDER

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


Russell A. Schindler, Kingston, for appellant.
Law Offices of Craig P. Curcio, Middletown (Tony
Semidey of counsel), for respondents.


Peters, J.

Appeal from an order of the Supreme Court (Meddaugh, J.), entered April 14, 2005 in Sullivan County, which granted defendants' motion for summary judgment dismissing the complaint.

On March 31, 2003, at approximately 1:30 A.M., a tractor trailer driven by defendant Ricky A. Bachman and owned by defendant MB Food Processing, Inc., veered off Route 42 in the Town of Thompson, Sullivan County, and struck plaintiff's home. At the time of the accident, plaintiff was sleeping in a room approximately three to four feet from the impact. Plaintiff was awakened when she heard "[a] tremendous roaring, crashing, wood-splitting noise" which sounded like an explosion. When she went to assess the situation, she observed a hole where the truck struck the house and noted debris from hundreds of chickens that the truck was carrying.

Plaintiff commenced this action seeking damages for her emotional distress, alleging not only a negligence claim but also a serious injury under Insurance Law § 5102 (d). Defendants successfully moved for summary judgment on the negligence claim. Although Supreme Court dismissed the complaint, it did not specifically rule on the Insurance Law cause of action. Plaintiff appeals.

Initially, as we are empowered to address the Insurance Law § 5102 cause of action despite Supreme Court's declination to do so (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110 [1984]), we dismiss that claim for a failure to offer [*2]objective medical evidence (see Bissonette v Compo, 307 AD2d 673, 674 [2003]). Left with a cause of action for negligent infliction of emotional distress, plaintiff was required to show a breach of a duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety (see Moore v Melesky, 14 AD3d 757, 761 [2005]; Sheila C. v Povich, 11 AD3d 120, 130 [2004]; Dobisky v Rand, 248 AD2d 903, 905 [1998]). While we recognize that plaintiff may recover damages for emotional distress, even in the absence of a corresponding physical injury, those circumstances will typically occur when "there exists 'an especial likelihood of genuine and serious mental distress, arising from . . . special circumstances, [since it] serves as a guarantee that the claim is not spurious'" (Johnson v State of New York, 37 NY2d 378, 382 [1975], quoting Prosser, Torts § 54, at 330 [4th ed]; see Battalla v State of New York, 10 NY2d 237, 241-242 [1961]; Iannotti v City of Amsterdam, 225 AD2d 990, 990-991 [1996]; Kaufman v Physical Measurements, 207 AD2d 595, 596 [1994]).

Here, defendant, as the movant, sustained his prima facie evidentiary burden (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In response, plaintiff proffered both her own affidavit and her bill of particulars indicating that she suffered from emotional distress which was an "exacerbation and/or acceleration of a prior existing post-traumatic stress disorder." In the absence of any expert proof, more was required (see Tatta v State of New York, 20 AD3d 825, 827 [2005], lv denied 5 NY3d 716; Atkins v Exxon Mobil Corp., 9 AD3d 758, 759 [2004]; Iannotti v City of Amsterdam, supra at 991; Doner v Adams Contr., 208 AD2d 1072, 1072 [1994]; Kaufman v Physical Measurements, supra at 596; compare Allinger v City of Utica, 226 AD2d 1118, 1120 [1996]). It is undisputed that the truck struck a different part of the house from where plaintiff was sleeping and that only a picture fell off the wall in her room; she suffered no physical injury nor was she in danger of physical harm (see Hart v Child's Nursing Home Co., 298 AD2d 721, 723 [2002]; Dabb v NYNEX Corp., 262 AD2d 1079, 1080 [1999]; Dobisky v Rand, supra at 905; Gonzalez v New York City Hous. Auth., 181 AD2d 440, 440 [1992]). Moreover, as plaintiff did not have a contemporaneous awareness of defendants' truck heading towards her home before its impact, no viable claim can be made that the accident was a traumatic event which placed her in imminent fear for her safety (see Lopez v Gomez, 305 AD2d 292, 293 [2003]; Gao Yi Feng v Metropolitan Transp. Auth., 285 AD2d 447, 448 [2001]; Gonzalez v City of New York Hous. Auth., supra at 440); mere observance of the negligently imposed physical damage to her home is insufficient to support her claim for emotional distress (see Probst v Cacoulidis, 295 AD2d 331, 332 [2002]; Dabb v NYNEX Corp., supra at 1079-1080; Caprino v Silsby, 226 AD2d 1078, 1078 [1996]).

Cardona, P.J., Crew III, Lahtinen and Rose, JJ., concur.

ORDERED that the order is affirmed, with costs.