7/28/05            Appel v. Allstate Insurance Company

Appellate Division,  First Department

Despite Untimely Notice by Insured, Court Must Make Separate Determination of Timeliness of Notice by Injured Party

Allstate's insureds were served with process, but never responded to the complaint and never notified Allstate until after the default judgment for $101,069 was entered against them. Allstate disclaimed on grounds of late notice providing the notice to the insured and to the plaintiff in the underlying action.  The attorney for plaintiff in the underlying action first became aware that Allstate was the carrier for defendants on May 10th.  On May 29th ,  that counsel served a copy of the notice of entry and commenced an action against Allstate to collect on the judgment.  In the lower court, Allstate successfully argued that since “Allstate was not liable to its insureds, it cannot be liable to plaintiff; and that its disclaimer letter did not have to be addressed to plaintiff or explicitly name her, and was otherwise sufficient”.
 

The appellate division rejects this position and holds that where the insured fails to give proper notice, the injured party can give notice herself, thereby preserving her right to proceed directly against the insurer.  In determining the reasonableness of an injured party's notice, the notice required is measured less rigidly than that required of the insureds.  Here the appellate division finds a question of fact as to whether plaintiff acted diligently in ascertaining Allstate's identity as the insurer and in notifying it of the accident in a timely manner.

 

7/28/05            Colon v. Kempner

Appellate Division,  First Department

Both Plaintiffs Fail To Meet Threshold amidst Lack of Objective Proof of Serious Injury

Defendants submitted medical reports that indicated plaintiff Colon showed no indications of a bulging or herniated disc or of pressure effects upon the thecal sac or nerve roots.  As to Plaintiff Calle, defendants relied on her testimony that she received treatment for only five months, and the fact that she failed to exchange any medical records indicating any physical limitations resulting from a disc injury.  In reversing the lower court and dismissing the plaintiffs’ complaint, the court emphasized that plaintiff Colon was a police officer who had passed all physical agility tests required by the New York City Police Department and is able to perform all his duties.  As to Calle, the court found significant that he had a three year gap in treatment.

 

7/25/05            Antonacci v. Manney

Appellate Division,  Second Department

Defendant’s IME Doctor Doesn’t Establish Absence of Serious Injury
Although the major claim of the injured plaintiff concerned alleged significant limitations in the use of her knees, neither the defendants' orthopedist nor neurologist indicated that he had tested the functioning of the plaintiff's knees and determined that she had full use of them. Since the defendants failed to meet their initial burdens of establishing a prima facie case, it was unnecessary to consider whether the plaintiff ‘s papers in opposition to the defendants motion[were sufficient to raise a triable issue of fact.

 

 

7/21/05            Samantha v. Reyes

Appellate Division,  Second Department

Range of Motion: Plaintiff’s Chiropractor Not Sufficient to Prevent Dismissal

Defendant’s doctor opined that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d) in that was no limitation of motion of plaintiff's cervical and lumbar spines.   The report of the plaintiff's chiropractor was not in affidavit form and, therefore, was without probative value and his qualitative assessment of plaintiff's limitation of motion was not supported by objective medical proof.

 

 

7/21/05            Petrogalis v. Pascocello

Appellate Division, Second Department

Range of Motion: Five Year Gap on Plaintiff’s Doctor’s Findings Insufficient

The affirmed medical reports submitted by defendant made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). They stated that plaintiff had full range of motion of his cervical and lumbar spines. One of the reports also stated that plaintiff had lumbar and cervical sprains that were resolved.  Plaintiff's doctor's assessment of plaintiff's limitation of motion more than five years after the accident was not supported by objective medical proof.  Furthermore, plaintiff also failed to submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in his spine.

 

 

7/21/05            A.B. Medical Services v. USAA General Indemnity Company

Appellate Division, Second Department

Post-Claim Verification Requests Do Not Encompass Pre-Claim IME Requests as Grounds for Denial of No-Fault Claims

This was an action to recover first-party no-fault benefits for medical services rendered.  Plaintiffs met their prima facie entitlement to summary judgment by proof that claims were submitted, setting forth the fact and the amount of the losses sustained, and that payment of no-fault benefits was overdue.  The grounds for denial of the claims were based on the failure of the assignors to appear for scheduled independent medical examinations (IMEs).

 

The court holds that the insurance rules governing post-claim verification requests, including the "follow-up" requirements, were inapplicable to an insurer's pre-claim IME requests. Nonetheless, a plaintiff may be entitled to prevail on its summary judgment motion, if it explains the eligible injured person's failure to attend the pre-claim IME by offering a valid excuse for such nonappearance, but Plaintiffs' motion failed to raise any issue of fact with respect to the assignors' proffered excuse for nonattendance.  In addition, it is undisputed that defendant did not issue timely denial of claim forms within the 30-day prescribed period as required, nor did it seek to extend the 30-day period by a timely request.

 

Practice Note: There’s an important practice pointer in this case regarding a no-fault provider’s election to arbitrate under Insurance Law § 5106 (b).  See Audrey’s Angle below for the rest of the story.

 

7/18/05            Poole v. Allstate Insurance Company

Appellate Division, Second Department

Forty Seven Claims and (Potentially) Forty Seven Trials

Poole, the assignee of 47 no-fault claims, commenced this action to recover unpaid no-fault benefits for medical services allegedly provided to 47 different patients, Allstate’s assignors. Following joinder of issue, the defendant insurer moved to sever the 47 causes of action. The Supreme Court denied the motion and the Appellate Division reverses. Although the claims at issue were being prosecuted by a single assignee against a single insurer for erroneous nonpayment of no-fault benefits, they arose from 47 different automobile accidents on various dates in which the 47 unrelated assignors suffered diverse injuries and required different medical treatment. The court finds under these circumstances, it was an improvident exercise of discretion to deny the motion to sever, since a single trial of all the claims would prove unwieldy and confuse the trier of fact.

 

 

7/18/05            In re New York Central Mutual Fire Insurance Company v. Aguirre

Appellate Division, Second Department

Failure to Satisfy Condition Precedent of Sworn Statement Negates Coverage

The Insured’s failure to file a sworn statement with New York Central Mutual Fire Insurance Company, after the alleged hit-and-run accident, in accordance with a condition precedent to coverage under the uninsured motorist endorsement of the insurance policy, vitiated coverage. The fact that the insurer received some notice of the accident does not negate the breach of this policy requirement.  Moreover, the language of the policy, which mirrors the prescribed endorsement promulgated by the Insurance Department (see 11 NYCRR 60-2.3[f]), was not ambiguous.

 

 

7/14/05            Lopez v. Carpio-Ceballo

Appellate Division, First Department

Lack of Proof of Disability in Medical Records Entitles Defendant to Dismissal on Serious Injury

Defendants met their burden of establishing prima facie that Lopez and Flores had not suffered serious injury within the meaning of Insurance Law § 5102(d) by submitting affirmed medical reports that detailed the results of physical examinations of the plaintiffs, including objective tests, indicating that Lopez had resolved sprains of the lumbar spine, left shoulder and left hand, and normal use of the left leg, and that Flores had resolved sprains of the right shoulder, lumbar spine and cervical spine. The doctor concluded that plaintiffs did not have disabilities and both were fully capable of performing all their activities.  Other proof submitted also indicated that the plaintiffs had returned to work and their daily activities soon after the accident.

 

7/14/05            Servones v. Toribio

Appellate Division, First Department

Objective Range of Motion Proof is Key to Both Plaintiffs

Defendant examining physicians found that plaintiff Joseph continued to have significant restrictions in motion, evidenced by range-of-motion calculations, approximately two years after the accident. These findings alone raise an issue of fact as to whether suffered a significant limitation of a body function or system, and refute the physicians' statements that Joseph's examinations revealed no significant limitation or disability.  Defendant did establish a prima facie showing of no serious injury with respect to plaintiff Servones by submitting admissible proof that had full range of motion in his cervical spine, despite the existence of an MRI report which showed herniated and bulging discs.

 

 

Audrey’s Angle on No-Fault

 

In our newest 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.

 

7/6/05  In the Matter of the Arbitration between the Applicant and Respondent

Respondent’s Independent Medical Examinations Found More Persuasive Then Treating Physician on Medical Necessity of Treatment

 

The Arbitrator:

Thomas J. McCorry

 

The Angle:    

The Arbitrator found more persuasive the multiple neurosurgical, orthopedic, and neuropsychological independent medical examination (“IME”) reports, many of which concluded symptom exaggeration and malingering, then the records from the two treating physicians indicating unchanged symptoms and surgery recommendation. 

 

The Analysis:

Applicant sought payment of numerous medical bills and a determination that the insurer’s denials were inappropriate as continuing medical treatment was necessary.  Arbitrator McCorry denied payment and upheld the insurer’s denials. 

 

The Applicant was involved in a July 13, 2003, motor vehicle accident and allegedly sustained injury to her cervical spine and left shoulder.  The Applicant, in an attempt to demonstrate medical necessity of the treatment, submitted records from Dr. Matteliano and Dr. Simmons.  Arbitrator McCorry, in a thorough analysis, noted that Dr. Matteliano’s record revealed a cervical and lumbosacral whiplash injury.  Applicant was found to have cervical spondylosis with C4/5 stenosis and degenerative disc disease at L5/S1.  Dr. Matteliano concluded a left shoulder and left hip contusion injury and referral for an MRI of the left shoulder and hip.  Applicant was diagnosed with a total disability from work.  Dr. Matteliano’s January 13, 2004, record revealed an unchanged diagnosis with a normal left hip MRI.  The left shoulder MRI revealed arthritic changes and bursitis but no tears. 

 

On January 2, 2004, Applicant treated with Dr. Simmons, an orthopedic surgeon, complaining of posterior neck pain with radiation into the left shoulder and upper extremity.  A cervical MRI revealed herniations at C4/5 and C5/6, which Dr. Simmons opined correlated with Applicant’s radicular symptoms.  Applicant also complained of low back pain radiating into her left hip with numbness in the left lower extremity.  Dr. Simmons recommended surgical intervention, which Applicant demonstrated an interest in. 

 

On January 23, 2004, Applicant followed up with Dr. Simmons.  Dr. Simmons reviewed the updated lumbar MRI report, as the films were unavailable, which revealed mild spondylolisthesis and foraminal stenosis with advanced disc degeneration.  Applicant complained of severe and worsening cervical and lumbar disc pain.  Applicant indicated the desire to proceed with surgical intervention.

 

In response, Respondent submitted neurosurgical, orthopedic, and neuropsychological IME reports.  The October 17, 2003, orthopedic IME report revealed cervical, lumbar, and left shoulder strain with a recommendation for physical therapy and neurologic consultation for hesitant speech.  A February 20, 2004, repeat IME report revealed that the Applicant resisted passive range of motion testing of the hips and knees alleging intolerable low back and left lower extremity pain.  A review of the lumbar MRI revealed mild L5/S1 facet hypertrophy with spondylosis, mild, foraminal stenosis.  The orthopedic IME physician opined that Applicant had cervical and lumbar strain.  He further opined that Applicant’s symptoms “are greatly out of proportion to her objective exam findings.”  Moreover, due to the fact that Applicant provided poor cooperation with the physical exam the physician was concerned with secondary gain.  Finally, he opined that there was no causal relation to the recommended cervical spine fusion and the motor vehicle accident.

 

The November 4, 2003, neurosurgical IME revealed that the Applicant had a cerebral concussion, cervical and lumbar strain superimposed over pre-existing cervical disc disease with osteoarthritis, which was complicated by Applicant’s symptom exaggeration.  A February 9, 2004, repeat IME revealed that Applicant had “discordance of symptoms to neurological and radiological findings.”  The neurosurgical IME physician opined that no further neurosurgical treatment was necessary.

 

The neuropsychological IME report revealed that Applicant had probable then possible malingering. 

 

On the balance, Arbitrator McCorry found the IME physicians’ reports and opinions more persuasive than the treating physicians.  Therefore, Respondent’s denials were upheld and the claim was denied.

 

7/21/05            A.B. Medical Services v. USAA General Indemnity Company

Appellate Division, Second Department

Provider Still Retains It Right to Litigate a Claim Despite Another Provider’s Election To Arbitrate a Claim Arising Out of the Same Accident 

 

The Angle:

Each provider has the ability to either arbitrate or litigate their claim.  The fact that one provider chooses to arbitrate its claim does not preclude subsequent, different, providers from foregoing arbitration and litigating their claim.  Keep in mind that once a provider chooses arbitration it waives the right to litigate subsequent claims arising out of the same accident.  Furthermore, a prior arbitration award in the insurer’s favor against one provider does not guarantee the application of either the res judicata or collateral estoppel doctrines, as there must be privity between the two providers for the doctrine to apply.  However, that does not mean that the prior arbitration award is not persuasive and it should still be submitted.

 

The Analysis:

The initial issue in this suit (addressed above) was whether the Plaintiff breached a policy condition by failing to appear for an IME.  The Court held that Plaintiff demonstrated a reasonable excuse for failing to appear.  Further, Plaintiff demonstrated medical necessity of the treatment rendered which was not rebutted by the Defendant.

 

This case provides an important practice pointer in the no-fault area.  The Court engages in a discussion and analysis of Defendant’s argument that Plaintiff is precluded from commencing this lawsuit based upon a prior arbitration award, in Defendant’s favor, regarding a different provider involving claims arising out of the same accident. The Court, relying upon Insurance Law §5106(b), which provides that each claimant provider may independently exercise its right to arbitrate their respective claims, held each provider has the right to either arbitrate or litigate its claim for benefits.  The fact that one provider chose to arbitrate its claim does not preclude other providers from foregoing arbitration and pursuing litigation of their claim.  However, the Court states that once a claimant has elected to arbitrate a claim it has waived the right to litigate any subsequent claims arising out of the same accident. Also, the Court declined to apply either the res judicata or collateral estoppel doctrine as there was no privity between this Plaintiff and the Provider in the prior arbitration. 

 

 

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.

 


7/21/05            Liberty Mutual Insurance Company v. OSI Industries, Inc

Court of Appeals of Indiana

Fourteen to Eighteen Months Delay for Notice to Insurer Unreasonable as Matter of Law
Liberty Mutual Insurance Company (“Liberty Mutual”) appeals from the grant of summary judgment in favor of OSI Industries, Inc., (“OSI”) and Beltec International (“Beltec”) in their declaratory judgment action alleging that Liberty Mutual breached its duty to defend OSI and Beltec in an underlying lawsuit. OSI cross-appeals the trial court’s order that Liberty Mutual pay only half of OSI’s legal fees and expenses because OSI was insured by another insurance company. Liberty Mutual makes three arguments on appeal: (1) the trial court erred in granting summary judgment when it concluded that the advertising injury and personal injury provisions of OSI’s and Beltec’s policies triggered Liberty Mutual’s duty to defend; (2) it has viable contractual and public policy defenses that preclude imposition of liability on the part of Liberty Mutual; and (3) the trial court erred in ordering Liberty Mutual to pay OSI and Beltec’s attorneys’ fees in prosecuting the declaratory judgment on action. On cross-appeal, OSI alleges that the trial court erred in deciding that because OSI had collected from its other insurance company in the underlying lawsuit, Federal Insurance Company, Liberty Mutual was only required to pay half of OSI attorneys’ fees. In the underlying lawsuit, OSI and Beltec were alleged to have disparaged the “Thermodyne Oven,” Thermodyne technology, and the ownership of the developments of the oven or technology in that Liebermann, as OSI and Beltec’s agent, in oral or written form claimed “absolute ownership not only in the developments and improvements in the Thermodyne oven but in the” flat, solid aluminum plate shelving as well. Thermodyne, however, claimed that the flat, solid aluminum plate shelving and technology in the “Thermodyne Oven” was Thermodyne’s “exclusive, secret technology.” Thus, Liebermann’s statements disparaged the “Thermodyne Oven” by creating confusion about the product and the technology in the marketplace because it was unclear as to which company, OSI/Beltec or Thermodyne, had the rights to and was producing an oven with the unique technology. As a result of such confusion, businesses were allegedly deterred from purchasing the “Thermodyne Oven.” This disparagement triggered Liberty Mutual’s duty under the “oral or written publication of material that . . . disparages a person’s or organization’s goods, products or services” clause in the “Personal Injury” coverage. Liberty Mutual next argues that despite having been found in breach of its duty to defend OSI and Beltec, it has a defense that the insurance policies exclude coverage for acts constituting a willful violation of penal statute. Liberty Mutual further contends that it should not be liable for any fees or costs incurred by OSI and Beltec before they gave notice to Liberty Mutual and that to allow OSI and Beltec, through the purchase of a Liberty Mutual insurance policy, to insure themselves against intentional misconduct violates public policy. Finally, Liberty Mutual asserts that, as to OSI, the wrongdoing alleged in Thermodyne’s complaint for which OSI sought a defense by Liberty Mutual did not occur during the policy period. The court agrees with Liberty Mutual that it should not be liable for defense costs prior to OSI’s and Beltec’s giving of notice of the underlying suit to Liberty Mutual; the court disagrees with Liberty Mutual on all other contentions. The court finds as a matter of law that the fourteen to eighteen months’ delay in OSI and Beltec’s being sued OSI and Beltec’s notification to Liberty Mutual to be unreasonable as a matter of law. The court finds that in the period before OSI and Beltec tendered notice, Liberty Mutual: (1) was denied the opportunity to offer settlement or guide the course of litigation; (2) was not given the opportunity to select an attorney more familiar with insurance defense to defend the suit; and (3) was unable to negotiate the amount of attorney’s fees. In addition, Liberty Mutual contends that public policy prohibits OSI and Beltec from insuring themselves against the intentional acts of misconduct alleged against them. The court disagrees with Liberty Mutual that to enforce the very words that it chose to incorporate as part of its insurance policy would be a violation of public policy. Regarding Liberty Mutual’s argument that the trial court erred in awarding OSI and Beltec their attorneys’ for prosecuting the declaratory judgment against Liberty Mutual, the court applies “American Rule” (each party pays its own fees). Regarding OSI’s argument that the trial court erred in ordering Liberty Mutual to pay only one-half of the legal fees and expenses that OSI incurred in the underlying lawsuit on the basis that OSI was also insured by Federal Insurance Company, the court holds that OSI is entitled to be compensated only for its damages and is not entitled to a windfall because it was insured by two insurance companies.

 

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

 


7/20/05            Edward Baumann and Elite Protection Specialists, LLC v. Elliott

Wisconsin Court of Appeals

Court Need Not Confine Itself to the “Four Corners” of the Complaint
The lower court found that an insurer had no duty to indemnify its insured or to provide him with a defense in an action for defamation of character because the policy required an “occurrence” to trigger coverage for “personal injury.” The defendant claims the lower court should have limited its duty-to-defend analysis to the “four corners” of the plaintiff’s complaint and that even if the policy does not cover the allegations in the complaint, the appellate court should read coverage into his policy because coverage limited to “accidental” defamation is illusory. The appellate court holds that a court need not confine itself to the “four corners” of a plaintiff’s complaint when deciding whether an insurance policy requires an insurer to defend the policyholder where it has already determined that the insurer has no duty to indemnify; the duty to defend exists only where coverage remains fairly debatable, and no debate remains once the court has resolved the coverage issue. The appellate court further holds that the “four corners” analysis may look to the ad damnum clause (prayer for relief) for clarification of the factual allegations where the allegations are otherwise sufficient to state a claim. Finally, the appellate court concludes that “negligent defamation” is not a contradiction in terms and Wisconsin law recognizes the possibility of recovery by a plaintiff even where the defendant does not deliberately and intentionally defame the plaintiff.

 

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


7/19/05            Hartford Casualty Insurance Company v. Litchfield Mutual

Connecticut Supreme Court

Court  Rejects Insurer’s Assertion that Underlying Action Not withing Coverage On the Basis Action was based Solely on Ownership of Dog

The plaintiffs, Hartford Casualty Insurance Company (Hartford Casualty) and the insured, sought a declaratory judgment that the defendant, Litchfield Mutual Fire Insurance Company, had a duty both to defend and to indemnify the owner of the insured in an underlying dog-bite case against the owner of the insured business premises where the injury occurred. The plaintiffs claim that: the insurance policy issued by the defendant provides that the defendant will defend the insured when a complaint is made that may be covered under the policy; the complaint against the owner of the insured alleged that the injured child was an invitee at the insured’s place of business; there was at least the possibility that the injury occurred as a result of the insured’s business conduct; and thus, the allegations in the complaint were sufficient to have invoked the defendant’s duty to defend. Further, the plaintiffs contend that the defendant continued to refuse to defend the owner of the insured even after it became clear through information provided by the owner of the insured that the alleged dog bite injury fell within the policy coverage. The defendant responds that the insured requested only “owners, landlords, [and] tenants” liability coverage, not general liability insured coverage, and that absent an allegation suggesting a connection between the dog and the insured business premises the defendant had no duty to defend the owner of the insured. The defendant further claims that the underlying action against the owner of the insured did not allege that the owner was an employee of the insured or that the owner kept the dog for business purposes. The defendant asserts that, because the underlying action was based only on the owner of the insured’s personal ownership of the dog, it did not come within the coverage provided by the defendant’s commercial policy, and the defendant had no obligation to defend the owner of the insured. Finally, the defendant contends that the underlying complaint did not relate to the insured’s ownership of the dog, to the ownership or maintenance of the insured premises, or any operations that were necessary or incidental to the insured premises, and that the policy issued by the defendant covers only liability that arises from the use or condition of the insured building, not any and all liability incurred by the owner of the insured. The court concludes that the defendant did have a duty to defend the owner of the insured in this case, because the language of the insured’s policy clearly covers the owner of the insured in his capacity as an employee, and the complaint in the underlying action creates at least the possibility that the owner of the insured was sued in his insured capacity. The court further concludes that, because the defendant breached its duty to defend the owner of the insured, it is liable for the cost of the defense as well as the amount of the settlement.

 

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

 

  

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Lopez v. Carpio-Ceballo


Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 3, 2004, which granted defendants' motions for summary judgment and dismissed the complaints of plaintiffs Lopez and Flores on the ground that they had not suffered "serious injury," unanimously affirmed, without costs.

Defendants met their burden of establishing prima facie that Lopez and Flores had not suffered serious injury within the meaning of Insurance Law § 5102(d). They met this burden by submitting the affirmed medical reports of their orthopedist. Those reports detailed the results of physical examinations of Lopez and Flores, including objective tests indicating that Lopez had resolved sprains of the lumbar spine, left shoulder and left hand, and normal use of the left leg, and that Flores had resolved sprains of the right shoulder, lumbar spine and cervical spine. The doctor concluded that neither of these plaintiffs had a disability and both were fully capable of performing all their activities. In addition, defendants submitted plaintiffs' deposition testimony in which Lopez and Flores admitted that each had missed only a few days of work, had returned to her job as a packer in a factory, and had resumed her regular schedule. This evidence was sufficient to establish prima facie entitlement to summary judgment (Gaddy v Eyler, 79 NY2d 955, 956 [1992]; Licari v Elliott, 57 NY2d 230 [1982]; see also Lashway v Groshans, 241 AD2d 832, 834 [1997]). Since plaintiffs failed to raise an issue of fact in opposition, the motions were properly granted (see Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Given that Lopez specifically informed defendants' physician that her claimed injuries were to her left shoulder and left arm, her present claim that the doctor should have examined her right shoulder and right arm is unavailing. [*2]

We have considered plaintiffs' remaining claims and find them unavailing.

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

ENTERED: JULY 14, 2005

CLERK

 

 Servones v. Toribio



Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 16, 2004, which, to the extent appealed from as limited by the briefs, granted defendant Cruz's motion for summary judgment dismissing the complaint on the grounds that neither plaintiff suffered serious injury within the meaning of Insurance Law
§ 5102(d), unanimously modified, on the law, the complaint reinstated with respect to plaintiff Joseph's claim against Cruz, and otherwise affirmed, without costs.

Defendant Cruz's examining physicians found that plaintiff Janot Joseph (identified in the record as Joseph Gavot) continued to have significant restrictions in motion, evidenced by range-of-motion calculations, approximately two years after the accident. These findings alone raise an issue of fact as to whether Joseph suffered a significant limitation of a body function or system, and refute the physicians' statements that Joseph's examinations revealed no significant limitation or disability (McDowall v Abreu, 11 AD3d 590 [2004]; see also Thorner v Latture, 11 AD3d 448 [2004]).

Defendant Cruz did establish a prima facie showing of no serious injury with respect to plaintiff Servones by submitting admissible proof that Servones had full range of motion in his cervical spine, despite the existence of an MRI report which showed herniated and bulging discs [*2](see Meely v 4 G's Truck Renting Co., 16 AD3d 26 [2005]).

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

ENTERED: JULY 14, 2005

CLERK

 

 

 

Poole v.Allstate Insurance Company


    In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated May 25, 2004, which denied its motion to sever the causes of action to recover unpaid no-fault benefits asserted by the plaintiff.

ORDERED that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is granted, and the causes of action to recover no-fault benefits are severed.

The plaintiff, the assignee of 47 no-fault claims, commenced this action to recover unpaid no-fault benefits for medical services he allegedly provided to 47 different patients, the plaintiff's assignors. Following joinder of issue, the defendant insurer moved to sever the 47 causes of action. The Supreme Court denied the motion. We reverse.

While the claims at issue are being prosecuted by a single assignee against a single insurer and all allege the erroneous nonpayment of no-fault benefits (see generally Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569), they arise from 47 different automobile accidents on various dates in which the 47 unrelated assignors suffered diverse injuries and required different medical treatment. Moreover, the defendant persuasively contends that the reasons for the denial of benefits, as well as the defenses raised in its answer, are many and varied, and would necessarily entail mini-trials as to the individual claims. Under these circumstances, it was an improvident [*2]exercise of discretion to deny the motion to sever, since a single trial of all the claims would prove unwieldy and confuse the trier of fact (see Radiology Resource Network, P.C. v Fireman's Fund Ins. Co., 12 AD3d 185; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536; see also Deajess Med. Imaging, P.C. v GEICO Gen. Ins. Co., 2005 WL 823884, 2005 US Dist LEXIS 5957 [SD NY, Apr. 7, 2005]; Boston Post Rd. Med. Imaging, P.C. v Allstate Ins. Co., 2004 WL 1586429, 2004 US Dist LEXIS 13243 [SD NY, July 15, 2004]).
SCHMIDT, J.P., MASTRO, RIVERA and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court
 

In re New York Central Mutual Fire Insurance Company v. Aguirre



Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for appellants.
Cullen and Dykman Bleakley Platt, LLP, Brooklyn, N.Y.
(Joseph Miller of counsel), for
respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the appeal is from a judgment of the Supreme Court, Nassau County (Dunne, J.), entered December 26, 2003, which, upon an order of the same court, dated October 7, 2003, granting the petition, permanently stayed arbitration.

ORDERED that on the court's own motion, the notice of appeal from the order is deemed a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,

ORDERED that the judgment is affirmed; and it is further,

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

The appellants' failure to file a sworn statement with the petitioner, New York Central Mutual Fire Insurance Company, after the alleged hit-and-run accident, in accordance with a condition precedent to coverage under the uninsured motorist endorsement of the insurance policy, vitiated coverage (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480; Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; Matter of New York Cent. Mut. Fire Ins. Co. v [*2]Shepard, 249 AD2d 549). The fact that the insurer received some notice of the accident does not negate the breach of this policy requirement (see Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409; Matter of American Home Assur. Company v Ceballos, 224 AD2d 612, 623). Moreover, the language of the policy, which mirrors the prescribed endorsement promulgated by the Insurance Department (see 11 NYCRR 60-2.3[f]), is not ambiguous.
FLORIO, J.P., SCHMIDT, ADAMS and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Antonacci v. Manney


            n an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Winslow, J.), dated November 23, 2004, which granted the motion of the defendant Steven P. Manney, and the separate motion of the defendants Chrysler Financial Company, LLC, Daimler Chrysler Services North America, LLC, and Chrysler Financial Corporation, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Kathleen Antonacci 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 payable by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated. [*2]

We agree with the plaintiffs' contention that the defendants failed to make a prima facie showing that the injured plaintiff did not sustain a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). Although the major claim of the injured plaintiff concerned alleged significant limitations in the use of her knees, neither the defendants' orthopedist nor neurologist indicated that he had tested the functioning of the plaintiff's knees and determined that she had full use of them (see Barrett v Jeannot, 18 AD3d 679; Moiseau v Dumas-Williams, 291 AD2d 535). Since the defendants failed to meet their initial burdens of establishing a prima facie case, it was unnecessary "to consider whether the plaintiff[s'] papers in opposition to the defendant[s'] motion[s] were sufficient to raise a triable issue of fact" (Coscia v 938 Trading Corp., 283 AD2d 538; see Mariaca-Olmos v Mizrhy, 226 AD2d 437).
H. MILLER, J.P., S. MILLER, GOLDSTEIN, MASTRO and LIFSON, JJ., concur.

ENTER:

 

Samantha v. Reyes

 

Appeal by plaintiff from an order of the District Court, Nassau County (D. Gross, J.), entered March 18, 2004, which granted defendants' motions for summary judgment dismissing the complaint, and from so much of an order of the same court, entered July 30, 2004, granting plaintiff's motion for reargument as, upon reargument, adhered to the original decision.

Order entered July 30, 2004 insofar as appealed from unanimously affirmed without costs.

Appeal from order entered March 18, 2004 unanimously dismissed.

The affirmed medical report submitted by defendant Terracciano's doctor in support of defendants' motions for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). He stated that there was no limitation of motion of plaintiff's cervical and lumbar spines. His diagnosis was resolved cervical and thoracic sprain/strain. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff unsuccessfully opposed the motion. The report of the plaintiff's chiropractor was not in affidavit form and, therefore, was without probative value (see Kunz v Gleeson, 9 AD3d 480 [2004]). In any event, his qualitative assessment of plaintiff's limitation of motion was not supported by objective medical proof (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

An order granting reargument and adhering to the original decision supersedes the original order (Dennis v Stout, 24 AD2d 461 [1965]; Weinstein-Korn-Miller, NY Civ Prac ¶ 5517.01). Accordingly, the appeal from the March 18, 2004 order is dismissed.
Decision Date: July 21, 2005

Petrogalis v. Pascocello

 

Appeal by defendant Anatoliy Suslovich in action Number 2 from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered July 9, 2003, which denied his motion for summary judgment. [*2]

 

Order unanimously reversed without costs and defendant's motion for summary judgment in Action Number 2 dismissing the complaint granted.

On August 22, 2001, the parties in Action Number 1 stipulated to discontinue that action.

The affirmed medical reports submitted by defendant made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). They stated that plaintiff had full range of motion of his cervical and lumbar spines. One of the reports also stated that plaintiff had lumbar and cervical sprains that were resolved. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff's opposition was insufficient to raise a triable issue of fact. Plaintiff's doctor's assessment of plaintiff's limitation of motion more than five years after the accident was not supported by objective medical proof (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Furthermore, plaintiff also failed to submit medical proof in admissible form that was contemporaneous with the accident showing any

initial range of motion restrictions in his spine (Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]; Elabtah AL Holding Corp., Vt., Inc., 4 Misc 3d 131[A], 2004 NY Slip Op 50701[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: July 21, 2005 

A.B. Medical Services v. USAA General Indemnity Company

 

Appeal by plaintiffs from an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on July 8, 2004, which denied their motion for summary judgment.

 

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

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

Defendant's denial of claim forms, submitted by plaintiffs for their claims pertaining to assignor Lapomarel in the sum of $ 4,980.17 and assignor Henningham in the sum of $2,160.94, which indicated the dates on which the claims were received, adequately established that plaintiffs sent, and that defendant received, these respective claims (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & [*2]11th Jud Dists]). The stated basis for denial of these claims was the failure of plaintiffs' assignors to appear for scheduled independent medical examinations (IMEs).

Pursuant to the mandatory personal injury protection endorsement of the insurance regulations, "[t]he eligible person shall submit to medical examination . . . when, and as often as, the Company may reasonably require" (11 NYCRR 65.12 [e], now 11 NYCRR 65-1.1 [d]). Where "an insurer timely asserts in its claim denial form an injured person's failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff's motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . . [and] such proof defeats the motion" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

Contrary to plaintiff's contention, the insurance rules governing post-claim verification requests, including the "follow-up" requirements (see 11 NYCRR 65.15 [e] [2], now 11 NYCRR 65-3.6 [b]; see also 11 NYCRR 65.15 [d] [2], [3], [4], now 11 NYCRR 65-3.5 [b], [d], [e]; 11 NYCRR 65.15 [g] [1] [I], now 11 NYCRR 65-3.8 [a] [1]) are inapplicable to an insurer's pre-claim IME requests (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, supra). A plaintiff, however, may be entitled to prevail on its summary judgment motion, if in support thereof it "explain[s] the eligible injured person's failure to attend the [pre-claim] IME by offering a valid excuse for such nonappearance, or [submits] proof that, under the circumstances, the IME request was unreasonable and, thus, not authorized by 11 NYCRR 65.12 (now 11 NYCRR 65-1.1) . . . [and] defendant's opposition papers otherwise fail to raise a triable issue of fact" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d at 22).

It is undisputed on the record that defendant timely denied these claims. Further, the affidavit of plaintiffs' assignors establishes that they received defendant's IME requests dated May 4, 2001, scheduling a chiropractic IME on May 18, 2001, and a neurological IME on May 21, 2001. In their affidavit, plaintiffs' assignors also alleged that they could not attend the IMEs and that prior thereto they sought to reschedule same. Defendant rescheduled the May 18, 2001 appointment to June 4, 2001, but subsequently cancelled the June 4, 2001 appointment. Plaintiffs' assignors further alleged that defendant refused their prior request to reschedule the May 21, 2001 appointment.

These factual allegations were sufficient to demonstrate a reasonable excuse for nonattendance by plaintiffs' assignors at the IME scheduled for June 4, 2001, since defendant cancelled this appointment. Moreover, the affidavit indicates that plaintiffs' assignors acted in good faith in attempting to reschedule the May 21, 2001 IME appointment. In opposition to plaintiffs' motion, defendant has not disputed the allegations in the affidavit nor demonstrated that plaintiffs' assignors were not acting in good faith in attempting to schedule mutually convenient IMEs, or otherwise addressed the same. In the absence of any such showing by defendant, its papers in opposition to plaintiffs' motion are insufficient to raise any issue of fact with respect to the assignors' proffered valid excuse for their nonattendance. Accordingly, under our holding in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 18, supra), defendant has failed to rebut the presumption of medical necessity which attaches to the claim form. [*3]

Plaintiffs submitted proper proof of mailing with regard to the remaining claims pertaining to assignor Lapomarel in the sum of $8,869.96 and assignor Henningham in the sum of $10,097.42, for which there are no denial of claim forms (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). It is undisputed that defendant did not issue timely denial of claim forms within the 30-day prescribed period as required under the insurance regulations (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), nor did it seek to extend the 30-day period by a timely verification request (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.5 [b]). Accordingly, defendant is precluded from asserting the defense of nonattendance at the scheduled IMEs (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). In any event, even assuming there were timely denials of these claims, defendant's opposition papers fail to raise an issue of fact with regard to said defense for the reasons set forth above.

Defendant's reliance on a prior arbitration award in its favor, which denied no-fault benefits sought to be recovered by the claimant Park Slope Medical Diagnostics as assignee of Lapomarel, and which involved claims arising from the same accident upon which the claims in the instant action are based, is misplaced. Insurance Law § 5106 (b) sets forth that "[e]very insurer shall provide a claimant with the option of submitting any dispute involving the insurer's liability to pay first party benefits . . . to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent." A claimant's election to arbitrate disputed no-fault claims waives the right to litigate subsequent claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985] [although the plaintiff's claim arose after the arbitration award and was therefore not barred by res judicata and collateral estoppel, her election to arbitrate precluded litigation for first-party benefits arising out of the same accident]; Cortez v Countrywide Ins. Co. , 17 AD3d 508 [2005]; Gaul v American Employers' Ins. Co., 302 AD2d 875 [2003]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938 [App Term, 2d & 11th Jud Dists]).

The prior arbitration proceeding involved a different claimant provider, and cannot act to preclude the instant action commenced by the plaintiffs providers seeking reimbursement of disputed no-fault benefits, even though the claims arise from the same accident. Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits. Consequently, the providers herein are not precluded from bringing the instant suit. Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action.

Accordingly, summary judgment is granted in favor of plaintiffs, and the matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum. [*4]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd & 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
A.B. MEDICAL SERVICES PLLC
D.A.V. CHIROPRACTIC P.C.
DANIEL KIM'S ACUPUNCTURE P.C.
ROYALTON CHIROPRACTIC P.C.
a/a/o LEXIANE LAPOMAREL
ROBERT HENNINGHAM,

Appellants,

-against-
USAA GENERAL INDEMNITY COMPANY,

Respondent.

Golia, J.P., concurs with the result only in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. Most particularly I note my dissent in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]).
Decision Date: July 21, 2005

  

Appel v. Allstate Insurance Company

Bertram Herman, Mount Kisco, for appellant.
Leahey & Johnson P.C., New York (Peter James Johnson, Jr. of
counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 29, 2004, which granted Allstate's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the matter remanded for further proceedings.

In this action pursuant to Insurance Law § 3420(b) to collect on a default judgment entered in an underlying June 2000 dog bite case in favor of plaintiff and against Allstate's insureds, it is undisputed that Allstate's insureds were served with process on August 1, 2000, but never responded to the complaint and never notified Allstate until after the default judgment for $101,069 was entered against them on April 24, 2001. Thereafter, by letter dated May 21, 2002 to its insureds with a copy to plaintiff's attorney in the underlying action, Allstate disclaimed coverage "to [the insureds] and anyone seeking coverage under the policy for you" based on the insureds' failure to give prompt notice and referencing the underlying action. Just over a week later, on May 29, 2002, plaintiff's attorney served a copy of the default judgment with notice of entry on Allstate, and then commenced this action to collect on such judgment.

Allstate sought summary judgment dismissing the complaint on the ground that it had previously obtained a default judgment against its insureds declaring that it had no duty to defend or indemnify them due to their failure to give timely notice of plaintiff's claim. As a result, Allstate argued, it does not have a duty to indemnify plaintiff.

In granting Allstate's motion, the IAS court held that because Allstate is not liable to its insureds, it cannot be liable to plaintiff; that its disclaimer letter did not have to be addressed to plaintiff or explicitly name her, and was otherwise sufficient; and that it did not have to disclaim specifically based upon plaintiff's own failure to timely notify it since notice, albeit untimely, had already been given to it by its insureds (citing Ringel v Blue Ridge Ins. Co., 293 AD2d 460, 462 [2002] and Massachusetts Bay Ins. Co. v Flood, 128 AD2d 683, 684 [1987], lv denied 70 NY2d 612 [1987]).

Where the insured fails to give proper notice, the injured party can give notice herself, thereby preserving her right to proceed directly against the insurer. "Having been statutorily granted an independent right to give notice and recover directly from the insurer, the injured party or other claimant is not to be charged vicariously with the insured's delay (Lauritano v [*2]American Fid. Fire Ins. Co., 3 AD2d 564, affd 4 NY2d 1028)" (Aetna Cas. & Sur. Co. v National Union Fire Ins. Co., 251 AD2d 216, 220 [1998]). In determining the reasonableness of an injured party's notice, the notice required is measured less rigidly than that required of the insureds (see Mount Vernon Fire Ins. Co. v NIBA Constr., 195 AD2d 425, 427 [1993] [Sullivan, J.P. concurring]). "The sufficiency of notice by an injured party is governed not by mere passage of time but by the means available for such notice" (National Grange Mut. Ins. Co. v Diaz, 111 AD2d 700, 701 [1985]; see also Jenkins v Burgos, 99 AD2d 217, 221 [1984]).

Unlike in this case, in both Ringel and Massachusetts Bay, the court found as a matter of law that the notices given by the injured parties were untimely as a matter of law "because [they] did not exercise due diligence in ascertaining the identity of [the] insurance company or in notifying [it] of the accident" (Ringel, 293 AD2d at 461-462), or "failed to make reasonable efforts under the circumstances to timely bring the accident to the attention of the carrier" (Massachusetts Bay, 128 AD2d at 684). "Where, as here, the insurer does not dispute receiving notice from its insured, 'the only issue with respect to the injured party [is] whether the efforts of the injured party to facilitate the providing of proper notice were sufficient in light of the opportunities to do so afforded it under the circumstances'" (Rochester v Quincy Mut. Fire Ins. Co., 10 AD3d 417, 418 [2004], quoting Massachusetts Bay, id.).

Thus, given the affirmation of the attorney for plaintiff in the underlying dog bite action that the first time he became aware that Allstate was the insurance carrier for the defendants in that action was approximately two days before Allstate sent him its disclaimer letter of May 12, 2002, there is, at the very least, an issue of fact as to whether plaintiff acted diligently in ascertaining Allstate's identity as the insurer and in notifying it of the accident (see Denneny v Lizzie's Buggies, 306 AD2d 89 [2003]).

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

ENTERED: JULY 28, 2005

CLERK

 

Colon v. Kempner




Morris Duffy Alonso & Faley, New York (Yolanda L. Ayala
and Richard J. Gallo of counsel), for appellants.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered March 16, 2004, which, to the extent appealed from as limited by the brief, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

On June 15, 2001, plaintiffs Colon and Calle, the operator and front seat passenger of an automobile, were traveling in "stop and go" traffic when their vehicle was struck in the rear by defendants' Ryder truck. Plaintiffs drove away from the accident scene without seeking any immediate medical treatment. Colon returned to his job as a courier for Federal Express two or three days later. Complaining of lower back and neck pain, he visited a chiropractor one week later, and saw the chiropractor three or four times a week for six months for physical therapy and massages. A July 11, 200l MRI examination of the cervical spine revealed a "[s]traightening of the normal cervical curvature . . . consistent with muscle spasm." An August 3, 2001 MRI examination of the lumbosacral spine revealed a "posterior bulging disc extending into the epidural fat abutting the thecal sac and bilateral S1 nerve roots." Dr. Jacob Nir examined Colon on July l3, 200l and found that he had spasms and tenderness of the cervical paraspinal muscles with radiation to the bilateral upper extremities and a decreased range of motion in the cervical and lumbar spine in all directions of flexation, extension, and lateral rotation and bending. A spinal range of motion test performed approximately one month after the accident indicated 7% impairments in the range of motion of both the cervical spine and lumbar spine. When he saw Dr. Nir again on January 21, 2004, two and a half years after the accident, at which time he was complaining of pain in the cervical and lumbar spine with spasms and marked tenderness, Dr. Nir found that Colon had a 25% decreased range of motion of the cervical spine in all directions and 35% decreased range of motion of the lumbar spine in all directions. Dr. Nir found that these decreased ranges of motion were permanent in nature and causally related to the accident. At his pre-trial deposition on November 4, 2003, Colon testified that he had been a member of the New York City Police Department for the past 15 months and that, other than lifting weights with less frequency, he could engage in all the activities he participated in prior to the accident.

Plaintiff Calle similarly did not seek medical treatment until approximately one week after the accident when, complaining of lower back pain, she saw a chiropractor. The [*2]chiropractor treated her with massage and heat therapy three or four times a week for approximately five months. An MRI taken on October 25, 2001 revealed an anterior disc bulge at L4-5 and a posterior disc herniation at L4-5. Calle did not receive any other medical treatment. She was examined by Dr. Gutstein, a neurologist, in January 2004 and diagnosed with "[l]umbar spine derangement with radiculopathy due to herniation of the disc at L4-L5 and bulging disc at L4-L5." His report notes that Calle had been treating herself with over-the-counter medication, rest and massage and restricting her activities. The report further stated that "[s]hould neurological deterioration occur, [Calle] would be a candidate for hospitalization, traction, and even surgery to remove the damaged discs." Dr. Gutstein found that her condition was caused by the June 15, 2001 accident, was permanent and would progress over time.

In support of their motion for summary judgment, defendants submitted reports from Dr. Macy, a radiologist, and Dr. Haberman, an orthopedic surgeon. Dr. Macy, who reviewed Colon's August 2001 MRI, saw no evidence of a bulging or herniated disc or of pressure effects upon the thecal sac or nerve roots. Dr. Haberman, who examined Colon, noted that Colon, a police officer, serves on regular duty without restrictions, is not undergoing physiotherapy and does not take medication. Dr. Haberman opined that Colon "had sustained a cervical and lumbosacral sprain/strain which has resolved. He has no disability at the present time and is carrying on with his normal activities without difficulty." As to Calle, defendants relied on her testimony that she received treatment for only five months, and the fact that she failed to exchange any medical records indicating any physical limitations resulting from a disc injury. Supreme Court denied defendants' motion as to each plaintiff, finding issues of fact. We reverse and dismiss the complaint.

Both plaintiffs have failed to submit evidence demonstrating that they suffered from serious injuries as that term is defined by the Insurance Law. Colon testified that while he was treated by a chiropractor for six months after the accident, he received no treatment after that. Nor is there any evidence that he sought treatment between the time of his deposition and the filing of the papers in opposition to defendants' motion for summary judgment. This three-year unexplained gap in treatment is fatal to his claim of serious injury (Pommells v Perez, NY3d , 2005 NY LEXIS 1041, 9-10, 2005 WL 975859, *7; see Bent v Jackson, 15 AD3d 46, 48-49 [2005]).

Even more significant is the fact that Colon has been employed as a police officer by the New York City Police Department since approximately July 2002. That he has undergone the medical examination administered by the Department, including physical agility tests (see Matter of City of New York v State Div. of Human Rights, 154 AD2d 56 [1990], lv denied 76 NY2d 706 [1990]) and has been found medically qualified to perform — and, in fact, does perform — the duties of a police officer, is wholly inconsistent with a finding that he has sustained an injury which results in a "permanent consequential limitation of use of a body organ or member [or] significant limitation of use of a body function or system" (Insurance Law § 5102[d]).

The three-year unexplained gap in treatment is similarly fatal to Calle's claim. Dr. Gutstein's report stated that further treatment would include therapy, medication and medical follow-up for symptomatic relief. Calle testified that she took one Advil a day and still had pain, [*3]but had not received any treatment following the massage and heat therapy, which ended five months after the accident, and only planned on seeing a doctor "[i]n the future, if it gets worse."

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

ENTERED: JULY 28, 2005

CLERK