Coverage Pointers - Volume VII, No. 22

Dear Coverage Pointers Subscribers:

So good to have you with us. Attached is the latest issue of Hurwitz & Fine's joyous review of New York insurance law, Coverage Pointers. The travelogue this week included Puerto Rico and Miami, for the Association of Defense Trial Lawyers Annual Meeting and the Joint International Program sponsored by the FDCC, DRI, ADTA and IADC, while all the time watching the appellate decisions in order to bring you your bi-weekly sampling.

You like freshly minted cases? In this week's edition, we provide you with a decision handed down yesterday by our high court, the New York Court of Appeals, reaffirming its decisions in Pommels and Toure. We are indeed in a new era for No Fault where the courts are finally taking the statute's requirement of serious injury threshold seriously. That's the Baez decision. As an extra bonus, we offer you another Court of Appeals case decided yesterday where the high court considers the dangerous propensities of a domesticated hornless bull. We know you'd want to read that one.

The First Department decision in Linette holds that an insurance carrier is not bound by a coverage decision in a case in which it did not have an opportunity to be heard.

Besides a dozen more "serious injury" threshold cases, you'll also see an interesting Fourth Department cases on the difference between "rotting" and "deterioration" in a first party situation and in another decision, a good discussion about the rules which prohibit a liability insurer from suing its own insured (the "anti-subrogation" rule).

Enjoying the warmth of a delightful spring season in New York. Hope you are as well.

Keep those cards and letters coming in.

Dan
Dan D. Kohane
[email protected]

5/4/06 Baez v. Rahamatali

New York Court of Appeals

Plaintiff Fails to Neither Provide Objective Medical Basis for Serious Injury nor Causally Connect Need for Surgery to the Accident
For those who collect Coverage Pointers as some collected baseball cards, you will undoubtedly remember our December 30, 2005 report on the First Department’s decision in this case. In a stroke of remarkable humor, we reported that:

Carriers Continue to Buy Serious Injury Motions at the “Gap” – Pommels Strikes Again in a Split Decision
The majority held that plaintiff's unexplained 20-month gap in treatment is fatal to her claim of serious injury (see Pommells v Perez, 4 NY3d 566). The dissent would have held the matter for a jury, citing proof in the record that the plaintiff stopped treatment because there was no further benefit to continuing physical therapy.

The 3-2 decision at the Appellate Division led to the expected appeal to the Court of Appeals and the high court has affirmed the order below. This is another reflection of a new philosophy that has and will lead to a great number of summary judgment motions being granted, for the defense, in “serious injury” cases.

The Court of Appeals finds that the defendants met their initial burden of establishing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d).

Citing their case of Toure v Avis Rent A Car Sys., 98 NY2d 345 (2002), they hold that plaintiff failed to provide an objective medical basis supporting the conclusion that she sustained a serious injury. Moreover, plaintiff failed to come forward with evidence that her current alleged need for surgery was causally related to the automobile accident (See Pommells v Perez, 4 NY3d 566 (2005]. Summary judgment was therefore properly granted to defendants.

5/2/06 Keavey v. New York State Dormitory Authority

New York Court of Appeals

Fall into Six Inch Gap of Boards Stacked Eight Feet not Gravity Related Accident under Labor Law 240 (1)

The Court of Appeals affirms the Appellate Division finding that the act of falling into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity related accident encompassed by Labor Law §240 (1).

5/2/06 Bard v. Jahnke

New York Court of Appeals

This Is No Bull! (Well, It Is, but One without a Violent Propensity)

Here, a hornless dairy bull named Fred attacks a carpenter. This provides an opportunity for the Court of Appeals to review the issue of vicious propensity. The Court holds that while knowledge of vicious propensities "may of course be established by proof of prior acts of a similar kind of which the owner had notice," a triable issue of fact as to whether the owner knew or should have known that its animal harbored vicious propensities may be raised by proof of something less (citing their Collier case). In Collier, the Court of Appeals addressed a situation where a dog bit a child and there was evidence that that the dog had "been known to growl, snap or bare its teeth." The Court indicates that the common shorthand name for the rule — the "one-bite rule" — is a misnomer. In Collier, the Court restated the longstanding rule as:

that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation

The Court has never held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Similarly, the Court indicates that they have never held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class. Therefore, the Court declines to do so now or otherwise to dilute the traditional rule under the guise of a companion common-law cause of action for negligence.

So, when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier. The Court affirms the Appellate Division on the grounds that Fred’s owner did not know that Fred, although hornless, disliked carpenters.

5/4/06 Linette v. Hanover Insurance Company

Appellate Division First Department

Insurer Did Not Have Full and Fair Opportunity to be Heard in Underlying Action

Insured sought a declaratory judgment in relation to a New Jersey insurance policy providing automobile coverage during her residency in New Jersey. She claimed that under New Jersey law, the insurer, Hanover, was collaterally estopped from relitigating issues already decided in an underlying personal injury action, where Hanover had notice of both the litigation and the trial date, but chose not to intervene.

The Appellate Division holds that Hanover is not collaterally estopped from litigating the coverage issues. Hanover was not a party to the underlying action, and was not in privity with the defendant in the underlying action. While Hanover was on notice of the action, it did not intervene. Although New York has a permissive intervention statute, as does New Jersey, New York courts recognize the potential prejudice to insurers forced to participate in personal injury matters. Thus, Hanover did not have a full and fair opportunity to be heard on the issues.

Editors note: When commencing a declaratory judgment action, or defending one, make certain that all parties you wish to be bound are indeed parties to the action.

5/2/06 Wal-Mart Stores, Inc. v. United States Fidelity and Guaranty Company

Appellate Division First Department

Question of Fact as to Whether Store Closed due to Rockslide Damage or Out of Concern for Occupants

This was an action under an all risk policy to recover lost business income, expenses incurred in reducing the loss of business income, and expenses incurred in adjusting the claim. Court finds an issue of fact as to whether Wal-Mart’s closing of its store was necessitated by the physical damage to the store caused by a rockslide, in which event lost business income would be covered, or was made out of concern for the safety of the store and its occupants raised by the risk of future rockslides, in which event there would not be coverage. The Court rejected the insurer’s argument that Wal-Mart’s affidavits in opposition were tailored to avoid the consequences of sworn testimony and documents to the effect that while repairs should not be undertaken until the adjacent hillside was stabilized, they were nevertheless feasible, and note contemporaneous correspondence claiming serious damage to the structural integrity of the rear wall and roof. Defendants' non-fortuity and known loss affirmative defenses, assuming their viability independently of the policies and Insurance Law, were properly dismissed upon a finding that the December 6, 1996 rockslide, while a known risk at the time the policies took effect, was not "substantially certain to occur". The Court also dismissed the “loss in progress defense” as a close variant of the “known loss defense”. The insurer’s obligation to reimburse Wal-Mart for attorneys' fees incurred in litigating its claims under the policies is not "unmistakably clear" from the relied-upon loss adjustment expenses clause and so the claim was properly dismissed.

5/02 Best v. Progressive Casualty Insurance Company

Appellate Division, Second Department

Injured Party Cannot Sue Liability Insurer Without Following Insurance Law Section 3420(a) (2) Requirements

Once again, the courts remind injured plaintiffs that they must follow the strict requirements of the "Direct Action" statute in order to test an insurance company's disclaimer. That statute requires the plaintiff to have a judgment against the insured, present that judgment to the insured and the insurer wait 30 days and then commence a "direct action." Here, the insurer established that it was never presented with the judgment with a request for payment and thus the lawsuit by the injured party, attempting to challenge a coverage decision, is dismissed.

4/28/06 Arbratosky v. Herman
Appellate Division Fourth Department
Can’t Prove a Contractual Obligation to Defend and Indemnify Without Offering the Contract in Evidence
Mall parking lot owner’s claim that tenant had an obligation to defend and indemnify it for accident that occurred in mall parking lot fails when owner, Sears, failed to offer any proof that a contract existing requiring such protection from the tenant.

4/28/06 Topor v. Erie Insurance Company
Appellate Division, Fourth Department
“Rotting” May Differ from “Deterioration” Under Property Policy
Defendant contends that damage caused by rotting is excluded from coverage under the policy and that the term "rotting" encompasses the deterioration of the mortar joints in the brick wall as a result of water infiltration and the freezing and thawing of that water. Plaintiffs interpreted the policy exclusion for rotting as applying only to the deterioration of organic materials such as wood. Court concludes that plaintiffs' interpretation is not unreasonable and, in construing the ambiguity against defendant, agreed with plaintiffs that the policy exclusion for damage caused by rotting does not apply to the deterioration of the mortar joints in the brick wall based on water infiltration and the freezing and thawing of that water. However, it was unclear whether building collapse was caused by one or the other so matter remitted for trial.

4/28/06 Huthmacher v. Dunlop Tire Corporation

Appellate Division, Fourth Department
Antisubrogation Rule Bars Action Where Parties were Insured for the Same Risk under Same Policies

As part of a construction contract, Nicholson & Hall agreed to hold harmless defendants Dunlop, the alleged owners of the work site, from certain liabilities and, in addition, had agreed to provide appropriate liability insurance coverage for Dunlop. Nicholson & Hall obtained primary insurance coverage from General Star and excess insurance coverage from Landmark, and both policies named Dunlop as an additional insured. General Star contributed $1 million toward the settlement with plaintiffs, and Landmark provided the remaining $4 million. Nicholson & Hall thereafter moved for summary judgment dismissing the third-party complaint, contending that the relief sought violated the antisubrogation rule. Allianz Underwriters Insurance, an excess insurance carrier insuring Dunlop, opposed the motion. Supreme Court properly concluded that the antisubrogation rule bars the third-party action inasmuch as Dunlop and Nicholson & Hall were insured for the same risk under the same policies. The Court also rejected the contention of Allianz that the antisubrogation rule is inapplicable because the Landmark policy excludes coverage for claims made under the Workers' Compensation Law. Plaintiffs' Labor Law causes of action in the primary action against Dunlop did not arise under the Workers' Compensation Law.

4/25/06 Penna v. Federal Insurance Company

Appellate Division, Second Department

Ambiguity in Policy Nets Insured 1 Million in SUM Coverage, Not 50k as the Insurer Argued

Federal Insurance Company argues that the maximum supplemental uninsured motorist (SUM) coverage afforded to the plaintiff under the subject insurance policy's "drive other car" endorsement was $50,000, relying upon the fact that the schedule in that endorsement lists $50,000 next to "Uninsured Motorist Limit." The plaintiff argues that the policy provided $1,000,000 of SUM coverage, relying upon the fact that the schedule in the declarations page of the policy lists $25,000/$50,000 next to "Uninsured Motorists," and $1,000,000 next to "SUM Coverage." Since the "drive other car" endorsement does not list SUM coverage at all, and states that "[t]his endorsement changes only those coverages where a premium is shown in the Schedule or in the Declarations," and a premium is shown for the $1,000,000 of SUM coverage on the business policy's declarations, the plaintiff contends that the $1,000,000 of SUM coverage is incorporated by reference into the "drive other car" endorsement.

Reading the policy and the "drive other car" endorsement together, the Court concludes that they are reasonably subject to either of the two interpretations proffered by the parties. Given the rule that ambiguities in an insurance policy are to be construed against the insurer and in favor of the insured, the construction favoring the plaintiff prevails. As such, the plaintiff is entitled to a judgment declaring that the policy provides her with SUM coverage in the sum of $1,000,000.

4/25/06 GEICO v. Basedow

Appellate Division, Second Department

PA Carrier Lacks Sufficient Contacts for New York Personal Jurisdiction

CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits. A car allegedly owned by Germosen and insured by American Independent Insurance Company (hereinafter American) was allegedly involved in a collision in Nassau County with a car owned by Basedow and insured by GEICO, resulting in injuries to Basedow. After American disclaimed coverage on the ground that Germosen's policy had lapsed, Basedow demanded arbitration from GEICO under the UM endorsement of his policy with GEICO. GEICO commenced a proceeding to stay the arbitration and sought to join American as an additional respondent. American did not answer. Almost four months after its answer was due, American moved under CPLR 3211(a) (8) to dismiss the petition for lack of personal jurisdiction. It argued that it was a Pennsylvania corporation and was not present in New York State for purposes of personal jurisdiction. The Supreme Court denied the motion and the Appellate Division reverses. American lacked sufficient contact with New York State to be subjected to personal jurisdiction in New York State absent a waiver. However, GEICO is not without a remedy. Since it is not clear from the record whether American's coverage of Germosen's vehicle was in effect on the date of the accident, the Court stays the hearing for 60 days to give GEICO an opportunity to commence an action in the State of Pennsylvania, American's domicile, to determine this issue.

4/25/06 Greenridge v. Allstate Insurance Company
Second Circuit Court of Appeals

Homeowners Liability: No Bad Faith for Rejecting a Settlement Offer Requiring Insurer to Consent to a Declaratory Relief Action
The Second Circuit considered whether Allstate breached its duty of good faith when it rejected an underlying claimant’s offer to settle for one policy limit and consent to a declaratory relief action to determine whether a second policy limit was triggered. In the underlying action, the claimant sued the insured-homeowners for bodily injury resulting from lead exposure. The insured-homeowners asserted that two policy limits of $300,000 were triggered despite the Allstate policy’s anti-stacking provision. Allstate disagreed and referred the issue to three separate coverage counsel, who all agreed that only one policy limit of $300,000 was triggered. The claimant in the underlying action offered to settle for one policy limit of $300,000 plus Allstate’s consent to a declaratory relief action to determine whether a second policy limit was triggered. Allstate refused, and a $2 million verdict was returned against the insured-homeowners, who then sued Allstate for bad faith. The district court granted Allstate’s motion for summary judgment and denied the insured-homeowners’ motion for summary judgment, dismissing the bad faith complaint. The Second Circuit affirmed. Allstate did not act in bad faith because the insured-defendants were in the best position to protect their interests, either by bringing a declaratory relief action while the underlying action was pending, or by settling for one policy limit and assigning the bad faith cause of action against Allstate to the claimants.

Submitted by: Bruce D. Celebrezze & Jamison R. Narbaitz of Sedgwick, Detert, Moran & Arnold LLP

The Serious (Injury) Side of New York No-Fault

5/02 Cerisier v. Thibiu

Appellate Division, Second Department
After Defendant Established Lack of Serious Injury in Motion, Plaintiff Failed to Properly Rebut it; Case Dismissed. Old Medical Reports and Bulging Disks Alone Insufficient to Show Serious Injury

Defendant established a lack of serious injury based on proof submitted. Plaintiff failed to raise issue of fact in opposition when the submissions included submissions from physicians "not based on recent examinations," and MRI's establishing only bulging discs. Court reminds us that bulging and/or herniated discs by themselves do not establish a serious injury, in the absence of evidence of physical limitations which otherwise qualify.

5/2/06 Oliva v.Gross

Appellate Division, Second Department

Affirmation of Plaintiff’s Counsel Insufficient to Defeat Serious Injury Motion

Defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The plaintiff failed to meet her burden in opposition to the defendants' prima facie showing as she submitted only the affirmation of her counsel, which was not based on any personal knowledge of the facts, a copy of her own deposition testimony, a copy of a motor vehicle accident report, and color photographs of her damaged vehicle. The plaintiff failed to submit any medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days.

4/28/06 White v. Winter

Appellate Division, Fourth Department

Watch the Stipulations (or lack thereof) on Summary Jury Trials

Summary jury trials (SJTs) have become quite popular for plaintiffs and insurers alike. Sometimes, the parties will have a written agreement as to the parameters of the SJT, but oftentimes they do not. This case illustrates the pitfalls to the process if preservation of issues for appeal is a concern for either party.

Here, the parties stipulated to a summary jury trial and also stipulated that there would "be no appeal from it." Nonetheless, the Defendant appealed contending that the Lower Court erred in ruling on plaintiff's motion for a directed verdict pursuant to CPLR 4401 and in determining that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) under the 90/180 category. The Court dismisses the appeal as the parties had stipulated not to appeal from the summary jury trial.

But, the Court finds that even if they were to reach the merits, the Court would reject the defendant’s contention that the court could not rule on plaintiff's motion for a directed verdict. The parties' stipulation did not address CPLR 4401 motions, and, the Court points out, the Judge's Bench Manual for the Eighth Judicial District's Summary Jury Trial Program contains no provision precluding the court from ruling on such a motion.

Finally, the Court could not review the issue of whether the Lower Court properly granted the motion as the parties also stipulated to dispense with a transcript of the summary jury trial.

4/28/06: Campbell v. Central New York Regional Transportation Authority
Appellate Division, Fourth Department
If Auto Accident Leads to Destruction of Wheelchair and Replacement Wheelchair Causes Secondary Injury, Can Secondary Injury be Used to Pass No Fault Threshold?
Plaintiff, while is a customized wheelchair, was struck by a bus. Replacement wheelchair caused plaintiff to develop skin necrosis and abscess formations which required several surgeries to repair. In a 3-2 decision, the Court held that injuries caused by wheelchair were within realm of forseeability while dissenting judges argued that abscesses and subsequent surgeries were the result of the wheelchair’s design, not the auto accident. Dissenters would have dismissed the case based on lack of serious injury.

4/28/06 Beutel v. Guild
Appellate Division, Fourth Department
Plaintiff Offers Sufficient Proof of Some Categories of Serious Injury, but Not All; Need Total Loss of Use to Establish “Permanent Loss of Use”
Although defendants met their initial burden on the motion with respect to those categories by submitting the report of their examining physician stating that plaintiff sustained no injuries as a result of the accident, plaintiff raised triable issues of fact by submitting the requisite objective evidence that she sustained injuries in the accident within the meaning of those categories (Toure v Avis Rent A Car Sys.,98 NY2d 345, 352-353). On the 90/180 category, plaintiff raised a triable issue of fact by submitting evidence establishing that she was disabled from working for four months following the accident. However, that the court erred in denying their motion with respect to the permanent loss of use category. Only a total loss of use is compensable under the permanent loss of use' exception to the no-fault remedy and there is no evidence in the record that plaintiff sustained the requisite total loss of use.

4/28/06 Coleman Wilson

Appellate Division, Fourth Department

Objective Medical Findings and Diagnostic Tests Defeat Defendant’s Motion

Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury. Although defendants met their burden of establishing by competent medical evidence that plaintiff's injuries do not qualify under the categories of serious injury allegedly sustained by plaintiff, plaintiff raised triable issues of fact with respect to those categories by presenting the requisite "competent medical evidence based upon objective medical findings and diagnostic tests.”

4/28/06 Pecora v. Lawrence

Appellate Division, Fourth Department

Trial Court Erred Directing Verdict on Significant Disfigurement Where Jury Could Have Found Otherwise (and Did)

Defendants conceded that they were at fault for the accident, and a trial was conducted on the issues of serious injury and damages. Plaintiff presented evidence establishing that she suffered severe lacerations to her left ear that left some scarring and made plaintiff self-conscious about the appearance of her ear. The jury returned a verdict finding that plaintiff did not sustain either a significant disfigurement or a permanent consequential limitation. However, the Lower Court granted plaintiff’s motion for directed verdict on the issue whether she sustained a significant disfigurement. The Appellate Division reverses finding that it was error for the Lower Court to determine as a matter of law that plaintiff sustained a significant disfigurement based on the initial injury to her ear at the time of the accident. Although there are some "temporary disfigurement[s] [that] will present jury questions as to whether they are significant, we reject plaintiff's contention that [hers] is such a case". Where, as here, the initial injury subsides to the point that it is "noticeable only to those acquainted with [the plaintiff]," there is a rational process by which a jury could find that the plaintiff did not sustain a significant disfigurement.

4/25/06 Volpetti v. Kap

Appellate Division, Second Department

Defendants IME Indicates Motion Restrictions and thus their Motion Fails

Defendants failed on their separate motions to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendant Tero's examining orthopedist, whose report was adopted by the defendant Kap, found that the plaintiff had restrictions in the range of motion of her lumbar spine. On this finding alone the defendants failed to meet their initial burdens on their separate motions. Moreover, the defendants' motion papers never adequately addressed the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. Defendant Tero's examining neurologist and orthopedist, whose reports were adopted by Kap, conducted their independent examinations of the plaintiff over a year after the accident. Neither expert related their findings to this category of serious injury for the period of time immediately following the accident.

4/25/06 Bravo v. Rehman

Appellate Division, Second Department

Herniated or Bulging disc Not Evidence of Serious Injury in Absence of Objective Evidence

Defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on unaffirmed medical reports without any probative value and the findings contained in an affidavit from his treating physician which did not quantify any loss of range of motion. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury or its duration.

4/25/06 Privitera v. Brown

Appellate Division, Second Department

Objective Range of Motion Proof Saves the Day for Plaintiff

Affirmation of the injured plaintiff's physician, who, on the basis of recent range of motion testing as well as range of motion testing done shortly after the subject accident, determined that the injured plaintiff had sustained restrictions in range of motion, was sufficient to raise a triable issue of fact.

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.

5/1/06 In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Lynn A. Pucino, Esq. (Orange County)

Insurer Does Not Waive Defense of Workers’ Compensation If Not In Denial.

Here is the Angle: An insurer is not required to raise workers’ compensation as an affirmative defense in a denial of claim. It may be appropriately raised at the arbitration and is only waived, according to Arbitrator Pucino, when not raised prior to final disposition of the claim.

The Analysis: Applicant sought $32,950.00 in medical expenses as well as unspecified lost wage benefits. The issue in the arbitration was whether Arbitrator Pucino had jurisdiction over this matter or whether workers’ compensation was the appropriate forum.

Applicant was allegedly injured in an October 29, 1997, motor vehicle accident wherein he sustained three cervical disc herniations requiring surgery. Applicant was operating a taxi at the time of the accident. The insurer denied no-fault benefits on the basis that Applicant failed to timely provide written notice of claim within 90 days. The insurer argued that Applicant was eligible for workers’ compensation benefits and this tribunal lacked jurisdiction. Also, the insurer argued that Applicant’s claim was barred by the statute of limitations.

In response, Applicant contended that he was not eligible for workers’ compensation as he was an independent contractor at the time of the accident. Further, Applicant argued that since the insurer never raised the workers’ compensation defense in its denial of claim that the defense was waived. Also, Applicant argued that his written notice of claim was late because the taxicab company misinformed him of the correct no-fault insurer.

Arbitrator Pucino granted a lengthy adjournment to permit Applicant to file a workers’ compensation claim in order to ascertain Applicant’s eligibility for workers’ compensation benefits. At the last hearing before Arbitrator Pucino no evidence was submitted as to the status of the workers’ compensation claim.

Arbitrator Pucino found that under Insurance Law §5102(b)(2) workers’ compensation benefits are primary to no-fault benefits. Here, Applicant was operating a taxi, in the course of his duties as taxi driver, at the time of the accident. Further, this tribunal lacked subject matter jurisdiction to determine whether the Applicant was an employee or independent contractor as well as whether he is eligible for workers’ compensation benefits.

More importantly, the insurer’s failure to raise a workers’ compensation defense in its denial does not waive the defense. Arbitrator Pucino reasoned:

The affirmative defense of workers’ compensation need not be presented in a denial of benefits, as a failure to disclaim coverage based on an exclusion in the policy, will not give rise to such coverage where it does not exist. [See New York University v. Continental Insurance Company 87 NY 2d 308, 639 NYS 2d 283 (1995)] Such a coverage defense is only waived if it is not raised prior to final disposition of the claim. [See Goodarzi v. City of New York 217 AD 2d 683, 630 NYS 2d 534 (2^nd Dept. 1995).]

Accordingly, the claim was denied without prejudice until there is a decision from the workers’ compensation board. The remaining issues of timely written notice of claim and statute of limitations may be addressed a subsequent arbitration after the workers’ compensation board decision.

5/1/06 In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Mary Anne Theiss, Esq. (Onondaga County)

Applicant’s Years of Chiropractic Care Not Medically Necessary As Evidence Demonstrated Plateaued Improvement.

Here is the Angle: In this case, the Applicant underwent years of chiropractic treatment to an unspecified part of her body. The treating chiropractor never provided Applicant with a home exercise or strengthening program. The treating chiropractor also opined that Applicant’s condition was permanent and that Applicant would most likely not return to her pre-accident condition. Likewise, the Applicant testified that the chiropractic care provided only a short term benefit. Arbitrator Theiss, relying upon the insurer’s chiropractic expert opinion, found that Applicant plateaued with the treatment and had reached maximum improvement. Thus, the chiropractic care was not medically necessary.

The Analysis: Applicant sought $1,876.00 in chiropractic care which was denied on April 23, 1999, effective April 28, 1999. Arbitrator Theiss found in favor of the insurer.

The Applicant was involved in a July 25, 1997, motor vehicle accident and another on March 24, 1998. At the time of the first accident, the Applicant was not working due to a lupus diagnosis. Prior to the first accident, Applicant also had hip bursitis for which she treated with Dr. Graham. Applicant testified that she never required chiropractic or physical therapy before the first accident. More over, her lupus, fibromayalgia, and hip bursitis were in remission.

Applicant testified that she experienced short term benefit from chiropractic care to unspecified parts of her body. She has also undergone chiropractic physical therapy, acupuncture, and pressure point treatment. However, the benefit did not last from the treatment.

Ms. Lynn Bayly, D.C., the treating chiropractor, testified that even after all of the years of chiropractic care the Applicant was never provided with home exercise or a strengthening program. Despite this, in April 1999, Applicant was making some improvement with chiropractic care. Yet, Applicant had permanency in her condition and the chiropractic care was only supportive. Ms. Bayly testified that after this lengthy treatment period she was not optimistic that Applicant would return to her pre-existing state.

The insurer conducted an independent chiropractic examination on March 29, 1999, wherein the chiropractor opined that Applicant plateaued in her response to the treatment. Further, the Applicant reached maximum chiropractic improvement.

Arbitrator Theiss found the expert chiropractor’s opinion more credible and denied the claim in the entirety.

4/24/06 In the Matter of the Arbitration between the Applicant and Respondent

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

Applicants Successful In Demonstrating That Written Notice of Claim Timely Submitted Through Testimony Regarding Mailing Practices.

Here is the Angle: Applicants provided the APIP insurer with notice of their accident and the no-fault applications sent to the primary no-fault insurer. Applicants’ counsel also sent two subsequent letters to the APIP insurer regarding the claim. The insurer denied the Applicants’ lost wage claim on the basis that Applicants provided late written proof of claim. The Applicants successfully presented testimony from their counsel’s law firm to demonstrate that the letters were mailed despite the APIP insurer’s contention it never received them. Moreover, Arbitrator McCorry held that notice of the claim was provided timely when the APIP insurer was provided with notice of the accident and a copy of the no-fault application demonstrating a lost wage claim.

The Analysis: The issue in this no-fault arbitration was whether the APIP insurer properly denied benefits for lost wages based upon the Applicants’ failure to timely submit written proof of claim.

Applicants, husband and wife, were involved in an October 15, 2004, motor vehicle accident. Applicants applied for and received no-fault benefits. Applicants’ counsel, four days after the accident, notified the APIP insurer of the accident and requested copies of the no-fault applications.

On November 16, 2004, the insurer acknowledged receiving the no-fault applications.

In addition, Applicants’ counsel contended that it also sent letters dated December 23, 2004 and January 21, 2004, providing written notice of the claim for APIP benefits.

On August 1, 2005, the insurer issued a blanket denial of APIP benefits on the basis that it did receive timely written notice of claim. Rather, the written notice of claim was received on July 25, 2005. The insurer argued that it never received Applicants’ counsels December and January correspondence.

The Applicants presented one of the partners from their counsel’s law firm to testify as to the first’s mailing practices. This was coupled with an Affidavit from a legal assistant who contended she stamped and mailed the December and January letters.

Arbitrator McCorry found that the insurer had notice of a lost wage claim on November 16, 2004 when it was apprised of a no-fault application. The insurer failed to request verification after receiving the no-fault application in light of the fact that the application indicated a lost wage claim. In addition, Arbitrator McCorry found that the testimony from Applicants’ counsel’s law firm persuasive that the December and January 2004 letters were mailed despite the insurer’s contention that it never received them. Accordingly, Arbitrator McCorry found that the denial was not proper.

Across Borders

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

4/27/06 French v. Assurance Company of America
Fourth Circuit Court of Appeals

CGL Coverage: Coverage Under 1986 ISO CGL Form For Damage to Non-Defective Work Product Arising Out of Subcontractor’s Defective Work
Applying Maryland’s substantive law, the Fourth Circuit considered whether the 1986 ISO CGL coverage form provides liability coverage to a general contractor for correcting defective workmanship performed by a subcontractor, and whether the form provides liability coverage for the costs to remedy unexpected and unintended property damage to the contractor’s otherwise non-defective work product caused by the subcontractor’s defective workmanship. Claimant-homeowners sued their contractor based on a defective Exterior Insulating Finishing System (“EIFS”) installed by a subcontractor. The district court granted summary judgment in favor of the contractor’s liability insurers, which agreed to defend but refused to contribute to the settlement of the underlying claim on the ground that the property damage to the claimant’s residence was expected by the insured-contractor, and was therefore excluded as “expected or intended” damage. The Fourth Circuit held that the district court was “partly right and partly wrong.” Under Maryland authority, the damage to the EIFS system would be excluded as expected damage, since such repairs would be expected under the sales contract between the claimant-homeowner and the insured-contractor. However, damage to non-defective portions of the home caused by moisture intrusion through the defective EIFS exterior would not be excluded, since such damage was an “accident” constituting an occurrence and was not expected by the insured. The Fourth Circuit noted that this holding is consistent with the intent and structure of the 1986 ISO CGL form, which contains an exception to the “Your Work” exclusion for work performed by a subcontractor.

Submitted by: Bruce D. Celebrezze, Esq. & Jamison R. Narbaitz, Esq. of Sedgwick, Detert, Moran & Arnold LLP

4/21/06 Tech-Built 153, Inc. v. Virginia Surety Company
New Hampshire Supreme Court

Interpretation of Coverage Afforded Under Additional Insured Endorsement is Limited to Clear Intent Memorialized in Agreement Between Contracting Parties
Tech-Built entered into a client service agreement with Surge, an employee leasing company, in which Surge agreed to furnish staff to Tech-Built to perform particular jobs. Surge operates under a workers’ compensation and employers’ liability insurance policy issued by Virginia Surety. Tech-Built served as a general contractor for work performed at a condominium project. It contracted with another company to perform framing. The framing subcontractor hired Scott Thomas, who was injured while working on the job site as a result of a fall. Thomas was awarded workers compensation coverage through the New Hampshire Department of Labor (“DOL”). Because the subcontractor that employed Thomas did not carry workers’ compensation insurance, the DOL determined that Tech-Built was liable under RSA 281-A:7 to pay Thomas’ workers compensation award. Tech-Built initiated a declaratory judgment action against Surge and its insurer, Virginia Surety, seeking workers’ compensation coverage under the policy issued by Virginia Surety to Surge. The superior court granted Surge and Virginia Surety’s motion for summary judgment concluding that the insurance contract issued by Virginia Surety extended workers compensation coverage only to Surge employees leased to Tech-Built. Tech-Built appealed claiming it was entitled to coverage under the Virginia Surety policy based on the identification of “Surge etal” as the insured on the Information Page of the policy and because Tech-Built and more than one hundred fifty other companies were listed in an additional insured endorsement to the policy referred to in the “other workplaces” section of the Information Page. The New Hampshire Supreme Court affirmed the grant of summary judgment finding that the insurance policy identified Tech-Built as a named insured only to the limited extent Tech-Built used Surge’s leased employees. The Court determined the contracting parties anticipated coverage under the Virginia Surety policy would extend to all workplaces of each employer listed in the endorsement but that the extension of workers compensation coverage would be limited exclusively to Surge employees it leases to the numerous companies identified in the policy endorsement.

Submitted by: Bruce D. Celebrezze & Erin J. Meagher (Sedgwick, Detert, Moran & Arnold LLP)

4/21/06 Allstate Indemnity Company v. Forth
Texas Supreme Court

Insured Must Show Actual Injury as a Result of Manner in Which Insurer Settles Claim to Sue
Insured’s daughter required medical treatment as a result of an auto accident. The personal-injury-protection of the insured’s Allstate auto insurance policy covered “reasonable medical expenses incurred for necessary medical services.” Allstate settled the insured’s medical bills for less than the actual amount billed. The insured sued Allstate for injunctive and declaratory relief, alleging that it arbitrarily reduced her bills without using an independent and fair evaluation to determine what amount of her medical expenses were reasonable. The Insured did not claim in her complaint that Allstate’s conduct had caused her any damage. The trial court granted Allstate’s motion to dismiss on the ground the insured lacked standing to sue because Allstate had not caused her any actual injury. The insured appealed. The court of appeals affirmed in part and reversed in part, concluding that if a fair and independent evaluation of the medical bills revealed that Allstate paid less than the full amount of the insured’s “reasonable expenses,” then she could claim injury, despite Allstate’s settlement of her medical claims, because the terms of the insurance contract required that reasonable expenses be paid. The Texas Supreme Court reversed and rendered judgment dismissing the insured’s claim on the grounds she did not claim that the manner in which Allstate settled her claim caused her any injury. The insured did not claim that she had any unreimbursed, out-of-pocket medical expenses and she did not assert any providers withheld medical treatment as a result of Allstate’s reducing their bills. Finally, the court pointed out that the insured’s medical providers had accepted the amount Allstate paid them without complaint therefore satisfying Allstate’s obligation under the policy.

Submitted by: Bruce D. Celebrezze & Erin J. Meagher (Sedgwick, Detert, Moran & Arnold LLP)

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Beutel v. Guild

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered March 22, 2005 in a personal injury action. The order denied defendants' motion for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries she sustained when the vehicle driven by plaintiff was rear-ended by a vehicle operated by defendant Tyler J. Guild and owned by defendant Stephen L. Giroux. Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as plaintiff alleges that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Although defendants met their initial burden on the motion with respect to those categories by submitting the report of their examining physician stating that plaintiff sustained no injuries as a result of the accident, plaintiff raised triable issues of fact by submitting the requisite objective evidence that she sustained injuries in the accident within the meaning of those categories (see generally Toure v Avis Rent A Car Sys.,98 NY2d 345, 352-353). The court also properly denied the motion with respect to the 90/180 category of serious injury. Although defendants met their initial burden, plaintiff raised a triable issue of fact by submitting evidence establishing that she was disabled from working for four months following the accident.

We agree with defendants, however, that the court erred in denying their motion with respect to the permanent loss of use category, and we therefore modify the order accordingly. [*2]"[O]nly a total loss of use is compensable under the permanent loss of use' exception to the no-fault remedy" (Oberly v Bangs Ambulance, 96 NY2d 295, 297), and there is no evidence in the record that plaintiff sustained the requisite total loss of use.

Bravo v. Rehman

Emmanuel O. Onuaguluchi, Brooklyn, N.Y., for appellant.
Norman Volk & Associates, P.C., New York, N.Y. (Holly E.
Peck of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), dated October 14, 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), and (2), as limited by his brief, from so much of an order of the same court dated January 27, 2005, as denied that branch of the plaintiff's motion which was for leave to renew and, upon, in effect, reargument, adhered to its original determination in the order dated October 14, 2004.

ORDERED that the appeal from the order dated October 14, 2004, is dismissed, on the ground that is was superseded by so much of the order dated January 27, 2005, as was, in effect, made upon reargument; and it is further,

ORDERED that the order dated January 27, 2005, is affirmed insofar as appealed from; and it is further,

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

The order dated January 27, 2005, in effect, granted that branch of the plaintiff's motion which was for reargument and adhered to the original determination in the order dated [*2]October 14, 2005 (see Schimsky v St. John's Episcopal Hosp., 163 AD2d 293). The original determination in the order dated October 14, 2005, was proper. The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; see also Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on unaffirmed medical reports without any probative value (see Hernandez v Taub, 19 AD3d 368; Holder v Brown, 18 AD3d 815; Mendoza v Whitmire, 6 AD3d 675) and the findings contained in an affidavit from his treating physician which did not quantify any loss of range of motion (see Kinchler v Cruz, 22 AD3d 808; Nelson v Amicizia, 21 AD3d 1015). The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury or its duration (see Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241).

Furthermore, the plaintiff failed to proffer competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident (see Sainte-Aime v Ho, 274 AD2d 569; Arshad v Gomer, 268 AD2d 450).

The Supreme Court properly denied leave to renew on the ground that the plaintiff "failed to offer a reasonable justification" for not submitting the new information in opposition to the original motion (Renna v Gullo, 19 AD3d 472, 473).
ADAMS, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Arabatosky v. Herman

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered February 24, 2005. The order denied the motion of defendant Sears, Roebuck and Co. for summary judgment and granted the cross motion of defendants Connecticut General Life Insurance Co. and General Growth Management, Inc. for summary judgment dismissing the amended complaint and cross claims against them.

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

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle in which he was a passenger struck an unlit light pole in the Summit Park Mall (Mall) parking lot. The vehicle was owned by defendant Robert E. Herman and operated by defendant Jason R. Herman, and the accident occurred in an area of the parking lot owned by defendant Sears, Roebuck and Co. (Sears) approximately one hour after the Mall and the Sears store had closed. Plaintiff alleges, inter alia, that defendants Connecticut General Life Insurance Co. and General Growth Management, Inc. (collectively, CG defendants) and Sears were responsible for maintaining the parking areas around the Mall and that they were negligent in their maintenance and operation of those areas.

Sears moved for summary judgment seeking "contractual defense and indemnification" from the CG defendants with respect to the issue of the negligent maintenance of the parking lot and dismissal of the amended complaint against it "with respect to any causes of action for the negligent design of the parking lot ...." The CG defendants cross-moved for summary judgment dismissing the amended complaint and cross claims against them. Sears appeals from the order [*2]denying its motion and granting the cross motion of the CG defendants.

Contrary to the contention of Sears, it failed to meet its initial burden of establishing its entitlement to contractual defense and indemnification because it failed to submit any portion of a contract requiring the CG defendants to defend or indemnify it. Contrary to the further contention of Sears, it failed to establish its entitlement to summary judgment dismissing the amended complaint against it with respect to any causes of action for the negligent design of the parking lot. The only evidence submitted by Sears in support of that part of its motion consisted of documents establishing that it complied with various building codes. According to Sears, those documents established that it had a "substantial history of complying with all relevant building codes and ordinances." That evidence, however, is insufficient to establish as a matter of law that the parking lot was not negligently designed or that it had no liability for that negligent design.

Finally, we do not address the contention of Sears that Herman's conduct was a superseding, intervening cause of the accident because Sears did not rely on that theory in support of its motion (see Dinneny v Allstate Ins. Co., 295 AD2d 797, 799; Gruber v Latello, 207 AD2d 1033).

Topor v. Erie Insurance Company

Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), entered May 27, 2005. The order, among other things, granted plaintiffs' motion for partial summary judgment on the issue of liability.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover under an insurance policy for the loss they sustained when the parapet of a building that they owned collapsed into the street. Plaintiffs thereafter moved for partial summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the policy excludes coverage for loss caused by rotting, and the parapet collapsed because of rotting mortar joints in the brick wall. Although we agree with defendant that Supreme Court erred in granting plaintiffs' motion, we conclude that the court properly denied defendant's cross motion. We therefore modify the order accordingly.

Addressing first defendant's cross motion, we note that it is well established that "[a]n exclusion from policy coverage must be specific and clear in order to be enforced; the exclusion must be set forth "in clear and unmistakable" language' .... The burden is on the insurer to demonstrate that the exclusion applies in the particular case and that the policy language relied upon by the insurer in support of the exclusion is subject to no other reasonable interpretation'" (McCarthy v New York Prop. Ins. Underwriting Assn., 158 AD2d 961, 962, quoting Seaboard Sur. Co. v Gillette Co.,64 NY2d 304, 311). "The construction and effect of a contract of insurance is a question of law to be determined by the court where[, as here,] there is no occasion to resort to extrinsic proof" (Hartford Ins. Co. of Midwest v Halt, 223 AD2d 204, 212, lv denied 89 NY2d 813, citing Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172). Any ambiguity in the insurance policy must be resolved against the insurer, its [*2]drafter (see State of New York v Home Indem. Co., 66 NY2d 669, 671). Defendant contends that damage caused by rotting is excluded from coverage under the policy and that the term "rotting" encompasses the deterioration of the mortar joints in the brick wall as a result of water infiltration and the freezing and thawing of that water. Plaintiffs interpret the policy exclusion for rotting as applying only to the deterioration of organic materials such as wood. We conclude that plaintiffs' interpretation is not unreasonable and, in construing the ambiguity against defendant, we agree with plaintiffs that the policy exclusion for damage caused by rotting does not apply to the deterioration of the mortar joints in the brick wall based on water infiltration and the freezing and thawing of that water. Consequently, the court properly denied defendant's motion for summary judgment dismissing the complaint based on that exclusion.

Nevertheless, we agree with defendant that plaintiffs failed to establish their entitlement to partial summary judgment and that the court therefore erred in granting their motion. " An insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and also that the loss was a covered event within the terms of the policy'" (Gongolewski v Travelers Ins. Co., 252 AD2d 569, 569, lv denied 92 NY2d 815; see Fernandes v Allstate Ins. Co., 305 AD2d 1065). The evidence submitted by plaintiffs in support of their motion established that the collapse was caused by both the deterioration and loosening of the mortar joints in the brick wall based on water infiltration and the freezing and thawing of that water, and by the rotting of the wooden portion of the supporting structure of the parapet. On the record before us, plaintiffs conceded in opposing defendant's cross motion that the policy excludes damage caused by the rotting of wood, and plaintiffs submitted evidence in support of their motion establishing that the loss may have been caused at least in part by the rotting of wood. We thus conclude on the record before us that plaintiffs failed to meet their burden of establishing that the loss was covered under the policy as a matter of law.

Defendant's remaining contention is moot in light of our determination.

Campbell v. Central New York Regional Transportation Authority

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered August 17, 2005. The order, insofar as appealed from, granted defendant's motion for summary judgment in part, dismissing the claim for personal injuries.


JAMES B. FLECKENSTEIN, SYRACUSE, FOR PLAINTIFF-APPELLANT.
MACKENZIE HUGHES LLP, SYRACUSE (W. BRADLEY HUNT OF COUNSEL), FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the motion is denied in its entirety and the claim for personal injuries is reinstated.

Memorandum: While crossing a street in his highly customized wheelchair, plaintiff was struck by a bus owned by defendant and operated by one of its employees. The wheelchair was damaged beyond repair, and, as a result, plaintiff was forced to use a wheelchair loaned to him by a local medical center. That wheelchair was not customized for plaintiff's "profound deformities" and, within two months, plaintiff developed "skin necrosis and abscess formation which required multiple surgical procedures to repair ...." Plaintiff commenced this action seeking damages for those personal injuries as well as the replacement cost of his wheelchair. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for partial summary judgment on the issue of proximate cause. Supreme Court granted defendant's motion in part, dismissing plaintiff's claim for personal injuries but left intact the complaint to the extent that plaintiff sought the replacement cost of his wheelchair. The court also denied plaintiff's cross motion. Plaintiff appeals from that part of the order granting defendant's motion in part but does not appeal from that part of the order denying his cross motion. We note that, in support of its motion and on appeal, defendant does not dispute that the skin necrosis and abscess formation were caused by plaintiff's use of a temporary wheelchair not customized for plaintiff's body.

We agree with plaintiff that the court should have denied defendant's motion in its entirety. "As a general proposition, liability for negligence turns upon the foreseeability of any harm resulting from the careless conduct, not upon the foreseeability of the exact nature and extent of the injury which does in fact ensue" (Poplar v Bourjois, Inc., 298 NY 62, 67), and "[t]he concept of proximate cause, or more appropriately legal cause, has proven to be an elusive [*2]one, incapable of being precisely defined to cover all situations" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314, rearg denied 52 NY2d 784). Thus, the Court of Appeals has stated that, "[g]iven the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established" (id. at 315; see Ziecker v Town of Orchard Park, 75 NY2d 761, 762-763).

In order to establish a prima facie case, a "plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian, 51 NY2d at 315; see Kush v City of Buffalo, 59 NY2d 26, 32-33). Although there are times when "[a]n interruption of the nexus between a defendant's negligence and the plaintiff's injury by the act of a third party may affect defendant's liability" (Kush, 59 NY2d at 33), the intervening act must be " extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'" (Maheshwari v City of New York, 2 NY3d 288, 295, quoting Derdiarian, 51 NY2d at 315). "When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist" (Kush, 59 NY2d at 33; see Derdiarian, 51 NY2d at 315). "Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, ... these issues generally are for the fact finder to resolve" (Derdiarian, 51 NY2d at 315; see Kriz v Schum, 75 NY2d 25, 34; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636). Invariably, summary judgment is appropriate "where only one conclusion may be drawn from the established facts" (Derdiarian, 51 NY2d at 315; see Kriz, 75 NY2d at 34).

In our view, defendant failed to establish its entitlement to judgment as a matter of law with respect to plaintiff's claim for personal injuries because its submissions establish that there is a triable issue of fact whether the accident was a proximate cause of plaintiff's injuries or whether an intervening act broke the causal nexus.

All concur except Hurlbutt, J.P., and Gorski, J., who dissent and vote to affirm in the following Memorandum: We respectfully dissent and would affirm the order granting defendant's motion for summary judgment dismissing the complaint. We agree with Supreme Court that defendant established as a matter of law that its negligence was not a proximate cause of plaintiff's skin necrosis or the formation of an abscess on plaintiff's hip. It is undisputed that, as a result of the accident, plaintiff's wheelchair incurred irreparable damage and had to be replaced. The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) and § 5104 (a). The record further establishes that the skin necrosis and abscess, which did not appear until approximately two months after the accident, were not related to any injury plaintiff sustained in the accident, but rather were caused by an ill-fitting replacement wheelchair. We must therefore conclude that, although the issue of proximate cause is ordinarily "for the fact finder to resolve," here the ill-fitting replacement wheelchair constituted an "independent intervening [occurrence] which operate[d] upon but [did] not flow from the original negligence" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784; see Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, mot to amend remittitur granted 46 NY2d 770; see also Martinez v Lazaroff, 48 NY2d 819, 820). Moreover, here, as in Rodriguez v Pro Cable Servs. Co. Ltd. Partnership (266 AD2d 894, 895), "[b]ased upon the circumstances of this case, including the lapse of time, we conclude as a matter of law that the original alleged negligence on defendant['s] part in [causing the accident] merely furnished the condition or occasion for the injury-producing occurrence and that plaintiff's injuries were the result of intervening circumstances ...." Indeed, "[t]he risk of plaintiff's [skin necrosis and formation of an abscess due to an ill-fitting replacement wheelchair] was a different kind of risk from that created by defendant['s alleged] negligence in [causing the accident] and was not a foreseeable consequence [*3]of [that alleged] negligence" (id.; see Ortiz v Jimtion Food Corp., 274 AD2d 508; Kerrigan v City of New York, 199 AD2d 367, 367-368; Browarek v Pfalzer [appeal No. 1], 174 AD2d 1054; see generally Ventricelli, 45 NY2d at 952; Mack v Altmans Stage Light. Co., 98 AD2d 468).
Entered: April 28, 2006
JoAnn M. Wahl
Clerk of the Court

Beutel v. Guild

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered March 22, 2005 in a personal injury action. The order denied defendants' motion for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries she sustained when the vehicle driven by plaintiff was rear-ended by a vehicle operated by defendant Tyler J. Guild and owned by defendant Stephen L. Giroux. Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as plaintiff alleges that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Although defendants met their initial burden on the motion with respect to those categories by submitting the report of their examining physician stating that plaintiff sustained no injuries as a result of the accident, plaintiff raised triable issues of fact by submitting the requisite objective evidence that she sustained injuries in the accident within the meaning of those categories (see generally Toure v Avis Rent A Car Sys.,98 NY2d 345, 352-353). The court also properly denied the motion with respect to the 90/180 category of serious injury. Although defendants met their initial burden, plaintiff raised a triable issue of fact by submitting evidence establishing that she was disabled from working for four months following the accident.

We agree with defendants, however, that the court erred in denying their motion with respect to the permanent loss of use category, and we therefore modify the order accordingly. [*2]"[O]nly a total loss of use is compensable under the permanent loss of use' exception to the no-fault remedy" (Oberly v Bangs Ambulance, 96 NY2d 295, 297), and there is no evidence in the record that plaintiff sustained the requisite total loss of use.

Coleman Wilson

Appeal from an order of the Supreme Court, Erie County (Peter J. Notaro, J.), entered February 16, 2005. The order denied defendants' motion for summary judgment dismissing the complaint in a personal injury action.

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 seeking damages for injuries sustained by Valerie Coleman (plaintiff) when the vehicle driven by her collided with a vehicle owned by defendant Cynthia Wilson and driven by defendant Troy Bratten. Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as a result of the accident within the meaning of Insurance Law § 5102 (d), i.e., under the permanent consequential limitation of use, significant limitation of use, or 90/180 categories of serious injury. Plaintiffs no longer contend that plaintiff sustained a serious injury under the permanent loss of use category. Although defendants met their burden of establishing by competent medical evidence that plaintiff's injuries do not qualify under the categories of serious injury allegedly sustained by plaintiff (see Chunn v Carman, 8 AD3d 745, 746; Dongelewic v Marcus, 6 AD3d 943, 943-944; Zeigler v Ramadhan, 5 AD3d 1080, 1082), plaintiffs raised triable issues of fact with respect to those categories by presenting the requisite "competent medical evidence based upon objective medical findings and diagnostic tests" (Barbagallo v Quackenbush, 271 AD2d 724, 725; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-352). Moreover, although defendants established that plaintiff's medical condition at issue was preexisting and was not exacerbated by the accident (see Franchini v Palmieri, 1 NY3d 536, 537; Shaw v Looking Glass Assoc., 8 AD3d 100, 102-103), plaintiffs raised a triable issue of fact with respect to causation (see Chunn, 8 AD3d at 746-747; Millick v Whatman, 253 AD2d 996).

Huthmacher v. Dunlop Tire Corporation

Appeal and cross appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered April 15, 2004. The order, among other things, granted in part the motion of third-party defendant for summary judgment.

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 seeking damages for the injuries sustained by Michael D. Huthmacher (decedent), as well as for his wrongful death, resulting [*2]from decedent's fall at a work site. This Court previously affirmed an order granting plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) (Huthmacher v Dunlop Tire Corp., 284 AD2d 1014, lv dismissed 97 NY2d 677). We thereafter modified the judgment entered following a trial on damages and granted a new trial on certain elements of damages (Huthmacher v Dunlop Tire Corp., 309 AD2d 1175). Following the issuance of our decision in that appeal, plaintiffs entered into a settlement in their action in the amount of $5 million.

Between the time of the second appeal before this Court and the settlement of plaintiffs' action, defendant Goodyear Dunlop Tires North America, Ltd. (Goodyear Dunlop), commenced a third-party action against Nicholson & Hall Corporation (Nicholson & Hall), decedent's employer, for contractual and common-law indemnification, alleging that the culpable conduct of Nicholson & Hall caused decedent's accident. As part of the work contract, Nicholson & Hall had agreed to hold harmless defendants Dunlop Tire Corporation and Goodyear Dunlop (collectively, Dunlop), the alleged owners of the work site, from certain liabilities and, in addition, had agreed to provide appropriate liability insurance coverage for Dunlop. Nicholson & Hall obtained primary insurance coverage from General Star Indemnity Company (General Star) and excess insurance coverage from Landmark Insurance Company (Landmark), and both policies named Dunlop as an additional insured. General Star contributed $1 million toward the settlement with plaintiffs, and Landmark provided the remaining $4 million. Nicholson & Hall thereafter moved for summary judgment dismissing the third-party complaint, contending that the relief sought violated the antisubrogation rule. Allianz Underwriters Insurance Company (Allianz), an excess insurance carrier insuring Dunlop, opposed the motion along with Goodyear Dunlop, having cross-moved to intervene in the third-party action for that limited purpose.

Supreme Court properly concluded that the antisubrogation rule bars the third-party action inasmuch as Dunlop and Nicholson & Hall were insured for the same risk under the same policies (see Hailey v New York State Elec. & Gas Corp., 214 AD2d 986, 987; see also Phoenix Ins. Co. v Stamell, 21 AD3d 118, 121-122; see generally North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294-295; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 468). We reject the contention of Allianz that the antisubrogation rule is inapplicable because the Landmark policy excludes coverage for claims made under the Workers' Compensation Law. Plaintiffs' Labor Law causes of action in the primary action against Dunlop did not arise under the Workers' Compensation Law. Moreover, any obligation that Nicholson & Hall has toward Dunlop arises out of its duty to indemnify Dunlop under contractual and common-law indemnification theories.

Finally, Nicholson & Hall contends that the court erred in granting Goodyear Dunlop leave, sua sponte, to serve an amended third-party complaint seeking the recovery of attorneys' fees and litigation-related expenses (see generally CPLR 3025 [b]). In view of the fact that the amended third-party complaint authorized by the court is not in the record before us, we are unable to determine the [*3]
propriety of the court's exercise of discretion in that respect.

GEICO v. Basedow

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, American Independent Insurance Company appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated June 30, 2005, which denied its motion pursuant to CPLR 3211(a)(8) to dismiss the petition insofar as asserted against it for lack of in personam jurisdiction.

ORDERED that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is granted, the petition is dismissed insofar as asserted against the appellant, and the proceeding against the remaining respondents is severed; and it is further,

ORDERED that the hearing directed to be held in the above-entitled matter is stayed for a period of 60 days after service of a copy of this decision and order upon the petitioner Government Employees Insurance Company to allow it to commence an action or proceeding in the [*2]State of Pennsylvania, if it be so advised, to determine whether the appellant properly cancelled the insurance policy of the Proposed Additional Respondent Yonatan N. Germosen.

On October 11, 2003, a car allegedly owned by the respondent Yonatan N. Germosen and insured by the appellant American Independent Insurance Company (hereinafter American) was allegedly involved in a collision in Nassau County with a car owned by the respondent Robert O. Basedow and insured by the petitioner-respondent Government Employees Insurance Company (hereinafter GEICO), resulting in injuries to Basedow. After American disclaimed coverage on the ground that Germosen's policy had lapsed, Basedow demanded arbitration from GEICO under the uninsured motorist endorsement of his policy with GEICO.

Thereafter, GEICO commenced this proceeding to stay the arbitration and, pursuant to an order of the Supreme Court dated November 17, 2003, sought to join American as an additional respondent. American did not answer. Almost four months after its answer was due under the provisions of the order dated November 17, 2003, American moved under CPLR 3211(a)(8) to dismiss the petition for lack of personal jurisdiction. It argued that it was a Pennsylvania corporation and was not present in New York State for purposes of personal jurisdiction. The Supreme Court denied the motion as untimely. We reverse.

We agree with American that it lacked sufficient contact with New York State to be subjected to personal jurisdiction in New York State absent a waiver (see Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638). American produced sufficient proof, without objection, demonstrating that it had insufficient contacts with New York State to permit the court to exercise personal jurisdiction over it (see Matter of Eagle Ins. Co v Gutierrez-Guzman, supra; Terry v Farmer's Ins. Co. of Ariz., 236 AD2d 829). Contrary to GEICO's contention, the waiver provisions of CPLR 3211(e) do not apply here because American neither appeared in the proceeding nor made another motion pursuant to CPLR 3211(a) that failed to make its objections to personal jurisdiction.

Any default judgment or order against a party over which the court lacks jurisdiction is a nullity (see Steele v Hempstead Pub Taxi, 305 AD2d 401, 402; DeMartino v Rivera, 148 AD2d 568, 569-570; Shaw v Shaw, 97 AD2d 403, 404; Miller v Weyerhaeuser Co., 179 Misc 2d 471, 476). Although American's motion was technically untimely, "[f]ailing to recognize the realities and adhering to the technicalities would simply undermine the speedy and inexpensive resolution of the controversy" (Miller v Weyerhaeuser Co., supra at 477). Since any default order or judgment against American would be a nullity, there is no point to denying American's motion as untimely. Consequently, under the unique circumstances of this case, we reverse and grant American's motion to dismiss the petition insofar as asserted against it (see Miller v Weyerhaeuser Co., supra at 477).

We note, however, that GEICO is not without a remedy. Since it is not clear from the record whether American's coverage of Germosen's vehicle was in effect on the date of the accident, we have stayed the hearing for 60 days to give GEICO an opportunity to commence an action in the State of Pennsylvania, American's domicile, to determine this issue (see Matter of Eagle Ins. Co v Gutierrez-Guzman, supra at 491; Matter of New York Cent. Mut. Ins. Co. v Johnson, supra at 640).
CRANE, J.P., KRAUSMAN, LUCIANO and RIVERA, JJ., concur.

Pecora v. Lawrence

Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), entered December 20, 2004 in a personal injury action. The order granted plaintiff's motion for a directed verdict on the issue of significant disfigurement (see Insurance Law § 5102 [d]).


BURKE, ALBRIGHT, HARTER & REDDY, LLP, ROCHESTER (ROBERT J. BURKE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
THE BARNES FIRM, P.C., ROCHESTER (THOMAS J. RZEPKA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when the vehicle she was operating was struck by a vehicle operated by defendant Marshall E. Lawrence and owned by defendant American Stainless Corporation. Defendants conceded that they were at fault for the accident, and a trial was conducted on the issues of serious injury and damages. Plaintiff presented evidence establishing that she suffered severe lacerations to her left ear that left some scarring and made plaintiff self-conscious about the appearance of her ear. The jury was given the opportunity to view plaintiff's ear, and photographs of plaintiff's ear were received in evidence at trial. At the close of evidence, plaintiff moved for a directed verdict on the issue whether she sustained a significant disfigurement (see Insurance Law § 5102 [d]). Supreme Court reserved decision on the motion but, after the jury returned a verdict finding that plaintiff did not sustain either a significant disfigurement or a permanent consequential limitation of use of a body organ or member, the court granted plaintiff's motion for a directed verdict on the issue of significant disfigurement "based upon the initial tearing away of a portion of plaintiff's ear at the time of the accident." In appeal No. 1, defendants appeal from the order granting that motion.

Plaintiff also moved for an order setting aside the verdict and directing judgment as a matter of law on the issue whether she sustained a permanent consequential limitation of use of a body organ or member or, in the alternative, a new trial on that issue on the ground that the verdict was contrary to the weight of the evidence. The court, however, did not rule on that motion but instead wrote that, "[i]n light of the court's determination of a significant [*2]disfigurement as a mat[t]er of law, the motions [sic] are moot." The court then issued an advisory decision on what it would have done "if [it] were to rule." At the conclusion of that advisory decision, the court wrote that "[t]his shall constitute the decision and order of the Court." In appeal No. 2, defendants purport to appeal from that document.

With respect to appeal No. 1, we conclude that the court erred in granting plaintiff's motion for a directed verdict on the issue of significant disfigurement. In order to direct a verdict in favor of the plaintiff, the court must view the evidence in the light most favorable to the defendants and conclude "there is no rational process by which the fact trier could base a finding in favor of the [defendants]" (Szczerbiak v Pilat, 90 NY2d 553, 556; see Kelley v Kronenberg [appeal No. 2], 2 AD3d 1406, 1407). Here, the court determined as a matter of law that plaintiff sustained a significant disfigurement based on the initial injury to her ear at the time of the accident. Although there are some "temporary disfigurement[s] [that] will present jury questions as to whether they are significant, we reject plaintiff's contention that [hers] is such a case" (Caruso v Hall, 101 AD2d 967, 968, affd 64 NY2d 843). Where, as here, the initial injury subsides to the point that it is "noticeable only to those acquainted with [the plaintiff]," there is a rational process by which a jury could find that the plaintiff did not sustain a significant disfigurement (Wiegand v Schunck, 294 AD2d 839, 839; see Caruso, 101 AD2d at 968-969).

We conclude that defendants' purported appeal from the "decision and order" in appeal No. 2 must be dismissed. Despite the court's statement that it "shall constitute the decision and order of the Court," that document did not actually order anything and "[n]o appeal lies from a mere decision" (Kuhn v Kuhn, 129 AD2d 967, 967). We note, however, that the motion underlying the order in appeal No. 2 is no longer moot in view of our reversal of the order in appeal No. 1.
Entered: April 28, 2006
JoAnn M. Wahl
Clerk of the Court

Penna v. Federal Insurance Company

In a consolidated action, inter alia, for a judgment declaring that the subject insurance policy provided the plaintiff with supplemental uninsured motorist coverage in the sum of $1,000,000 in connection with an automobile accident which occurred on September 14, 2000, and to recover damages for negligence and breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered October 8, 2004, which denied her motion for summary judgment and granted the defendants' separate cross motions for summary judgment.

ORDERED that the order is modified by (1) deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment against the defendant Federal Insurance Company on her cause of action for a judgment declaring that the subject insurance policy provided her with supplemental uninsured motorist coverage in the sum of $1,000,000 in connection with an automobile accident which occurred on September 14, 2000, and substituting therefor a provision granting that branch of the motion, and (2) deleting the provision thereof granting the cross motion of the defendant Federal Insurance Company and substituting therefor a provision denying that cross motion; as so modified the order is affirmed, on the law, and the matter is remitted to the [*2]Supreme Court, Nassau County, for the entry of a judgment declaring that the subject insurance policy provided the plaintiff with supplemental uninsured motorist coverage in the sum of $1,000,000 in connection with an automobile accident which occurred on September 14, 2000; and it is further,

ORDERED that the plaintiff is awarded one bill of costs payable by the defendant Federal Insurance Company.
Policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer (see Government Employees Ins. Co. v Kligler, 42 NY2d 863). Further, "in construing an endorsement to an insurance policy, the endorsement and the policy must be read together, and the words of the policy remain in full force and effect except as altered by the words of the endorsement" (County of Columbia v Continental Ins. Co., 83 NY2d 618, 628; see Shah v Cambridge Mut. Fire Ins. Co., 304 AD2d 815; Hamilton v Khalife, 289 AD2d 444). "[T]he test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy" (Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326-327).

The defendant Federal Insurance Company argues that the maximum supplemental uninsured motorist (hereinafter SUM) coverage afforded to the plaintiff under the subject insurance policy's "drive other car" endorsement was $50,000, relying upon the fact that the schedule in that endorsement lists $50,000 next to "Uninsured Motorist Limit." The plaintiff argues that the policy provided $1,000,000 of SUM coverage, relying upon the fact that the schedule in the declarations page of the policy lists $25,000/$50,000 next to "Uninsured Motorists," and $1,000,000 next to "SUM Coverage." Since the "drive other car" endorsement does not list SUM coverage at all, and states that "[t]his endorsement changes only those coverages where a premium is shown in the Schedule or in the Declarations," and a premium is shown for the $1,000,000 of SUM coverage on the business policy's declarations, the plaintiff contends that the $1,000,000 of SUM coverage is incorporated by reference into the "drive other car" endorsement.

Reading the policy and the "drive other car" endorsement together, we conclude that they are reasonably subject to either of the two interpretations proffered by the parties. Given the rule that ambiguities in an insurance policy are to be construed against the insurer and in favor of the insured, the construction favoring the plaintiff prevails (see Matter of Mostow v State Farm Ins. Cos., supra). As such, the plaintiff is entitled to a judgment declaring that the policy provides her with SUM coverage in the sum of $1,000,000 in connection with an automobile accident which occurred on September 14, 2000.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the policy provides the plaintiff with SUM coverage in the sum of $1,000,000 in connection with an automobile accident which occurred in September 14, 2000 (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).

The plaintiff's contentions regarding the defendant Safe Harbor Group, Ltd., are without merit. [*3]
CRANE, J.P., GOLDSTEIN, LUCIANO and COVELLO, JJ., concur.

Privitera v. Brown

In two related actions, inter alia, to recover damages for personal injuries, etc., which were joined for trial, the defendants Stanley A. Brown and Darrell R. Scott appeal, as limited by their brief, from so much of two orders of the Supreme Court, Kings County (Hinds-Radix, J.), both dated February 2, 2005, one entered in each action, as denied that branch of their motion which was for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against them on the ground that the plaintiff Gerald L. Klein did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.

The defendants Stanley A. Brown and Darrell R. Scott made a prima facie showing that Gerald L. Klein, a plaintiff in Action No. 2 (hereinafter the injured plaintiff), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject multi-vehicle [*2]accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Kearse v New York City Tr. Auth., 16 AD3d 45). However, the affirmation of the injured plaintiff's physician, who, on the basis of recent range of motion testing as well as range of motion testing done shortly after the subject accident, determined that the injured plaintiff had sustained restrictions in range of motion, was sufficient to raise a triable issue of fact (see Williams v New York City Tr. Auth., 12 AD3d 365).
ADAMS, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.

Volpetti v. Kap

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated March 3, 2005, 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).

ORDERED that the order is reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated.

Contrary to the Supreme Court's determination, the defendants failed on their separate motions to make a prima facie 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. The defendant Rothmond Tero's examining orthopedist, whose report was adopted by the defendant Yoon Kap, found that the [*2]plaintiff had restrictions in the range of motion of her lumbar spine (see McDowall v Abreu, 11 AD3d 590; Cordero v Salazar, 10 AD3d 380). On this finding alone the defendants failed to meet their initial burdens on their separate motions. Moreover, the defendants' motion papers never adequately addressed the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The defendant Rothmond Tero's examining neurologist and orthopedist, whose reports were adopted by the defendant Yoon Kap, conducted their independent examinations of the plaintiff over a year after the accident. Neither expert related their findings to this category of serious injury for the period of time immediately following the accident (see Sayers v Hot, 23 AD3d 453; Connors v Center City, 291 AD2d 476). Under these circumstances, it is not necessary to consider whether the plaintiff's papers in opposition to the defendants' separate motions were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur.

White v. Winter

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered March 16, 2004 in a personal injury action. The order and judgment, among other things, granted plaintiff judgment in the sum of $32,154.19 with interest.


BOUVIER PARTNERSHIP, LLP, BUFFALO (RAFAEL O. GOMEZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


It is hereby ORDERED that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Defendant appeals from an order and judgment entered following a summary jury trial. Defendant contends on appeal that Supreme Court erred in ruling on plaintiff's motion for a directed verdict pursuant to CPLR 4401 and further erred in granting the motion, determining that plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d) under the 90/180 category. In stipulating to a summary jury trial disposition of the matter, the parties further stipulated that there would "be no appeal from it." We therefore dismiss the appeal.

Were we to reach the merits of the appeal, we would reject defendant's contention that the court erred in ruling on plaintiff's motion for a directed verdict. The parties' stipulation does not address CPLR 4401 motions, and the Judge's Bench Manual for the Eighth Judicial District's Summary Jury Trial Program contains no provision precluding the court from ruling on such a motion. With respect to defendant's contention that the court erred on the merits in granting plaintiff's motion, we note that the parties also stipulated to dispense with a transcript of the summary jury trial. Thus, even if defendant's contention were properly before us, we would be unable to review it in the absence of a transcript.
Entered: April 28, 2006
JoAnn M. Wahl
Clerk of the Court

Wal-Mart Stores, Inc. v. United States Fidelity and Guaranty Company

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered October 28, 2005, which, in an action under an all risk policy to recover lost business income, expenses incurred in reducing the loss of business income, and expenses incurred in adjusting the claim, inter alia, granted defendants insurers' motion for summary judgment to the extent of dismissing so much of the loss adjustment claim as seeks to recover attorneys' fees incurred in litigating this action, and granted plaintiff's cross motion to dismiss various of defendants' affirmative defenses, unanimously modified, on the law, to dismiss the defense of loss in progress, and otherwise affirmed, without costs.

The motion court correctly found an issue of fact as to whether plaintiff's closing of its store was necessitated by the physical damage to the store caused by the December 6, 1996 rockslide, in which event lost business income would be covered, or was made out of concern for the safety of the store and its occupants raised by the risk of future rockslides, in which event there would not be coverage (cf. Cytopath Biopsy Lab. v United States Fid. & Guar. Co., 6 AD3d 300 [2004]). We reject defendants' argument that plaintiff's affidavits in opposition were tailored to avoid the consequences of sworn testimony and documents to the effect that while repairs should not be undertaken until the adjacent hillside was stabilized, they were nevertheless feasible, and note contemporaneous correspondence claiming serious damage to the structural integrity of the rear wall and roof. Defendants' non-fortuity and known loss affirmative defenses, assuming their viability independently of the policies and Insurance Law, were properly dismissed upon a finding that the December 6, 1996 rockslide, while a known risk at the time the policies took effect, was not "substantially certain to occur" (see National Union Fire Ins. Co. of Pittsburgh, PA v Stroh Cos., 265 F3d 97, 106 [2d Cir 2001], quoting Ostrager and Newman, Handbook on Insurance Coverage Disputes § 8.02, at 248 [5th ed 1991]). We modify to dismiss as well the loss in progress defense, a close variant of the known loss defense (see Inland Waters Pollution Control v National Union Fire Ins. Co., 997 F2d 172, 177 [1993]), apparently overlooked by the motion court. Defendants' obligation to reimburse plaintiff for attorneys' fees [*2]incurred in litigating its claims under the policies is not "unmistakably clear" from the relied-upon loss adjustment expenses clause, and, accordingly, the claim therefor was properly dismissed (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 492 [1989]). We have considered the parties' remaining contentions for affirmative relief and find them unavailing.

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

ENTERED: MAY 2, 2006

CLERK

Keavey v. New York State Dormitory Authority

Submitted by Alan D. Voos, for appellant.
Submitted by Patricia S. Walker, for respondent.


MEMORANDUM:

The order of the Appellate Division should be affirmed with costs.

The Appellate Division properly dismissed plaintiff's Labor Law § 240 (1) and § 241 (6) causes of action. The act of falling into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity related accident encompassed by Labor Law § [*2]240 (1) (see Toefer v Long Island R.R., 4 NY3d 399 [2005]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). Further, plaintiff failed to demonstrate the applicability of any section of the Industrial Code.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and
R.S. Smith concur.
Decided May 2, 2006

Baez v. Rahamatali

Submitted by Brian J. Isaac, for appellant.
Submitted by Holly E. Peck, for respondent Smith.
Submitted by Yolanda L. Ayala, for respondent Torres.
Submitted by Nickolas G. Spiliotis, for respondent
Rahamatali.


MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

Defendants met their initial burden of establishing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, plaintiff failed to provide an objective medical basis [*2]supporting the conclusion that she sustained a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Moreover, plaintiff failed to come forward with evidence that her current alleged need for surgery is causally related to the automobile accident (see Pommells v Perez, 4 NY3d 566, 572, 580 [2005]). Summary judgment was therefore properly granted to defendants.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and
R.S. Smith concur.
Decided May 4, 2006

Linette v. Hanover Insurance Company

Perecman & Fanning, P.L.L.C., New York (Cyril Baines of
counsel), for appellant.
Callan, Koster, Brady & Brennan, LLP, New York (Andrew B.
Weiner of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 19, 2005, denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, unanimously affirmed, without costs.

Plaintiff sought a declaratory judgment in relation to a New Jersey insurance policy providing automobile coverage during her residency in New Jersey. She claims that under New Jersey law, defendant was collaterally estopped from relitigating issues already decided in an underlying personal injury action, where defendant had notice of both the litigation and the trial date, but chose not to intervene.

Collateral estoppel is essentially a procedural concept, and matters of procedure are governed by the law of the chosen forum (see Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]). Although the New Jersey courts would apply collateral estoppel to preclude defendant from relitigating plaintiff's damages at arbitration (see Zirger v General Acc. Ins. Co., 144 NJ 327, 337-339, 676 A2d 1065, 1071 [1996]), the law and policy of New York precludes the application of this doctrine under the circumstances (see Buechel v Bain, 97 NY2d 295 [2001], cert denied 535 US 1096 [2002]). Hanover was not a party to the underlying action, and was not in privity with the party defendant there. While Hanover was on notice of the action, it did not intervene. Although New York has a permissive intervention statute, as does New Jersey, our courts recognize the potential prejudice to insurers forced to participate in personal injury matters (see Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235 [2002]). Thus, Hanover did not have a full and fair opportunity to be heard on the issues therein (see e.g. Matter of Allstate Ins. Co. v Casanova, 145 AD2d 630 [1988]).
Accordingly, plaintiff is not entitled to a declaration, under New York law, that defendant is bound by the judgment in the underlying personal injury action. This decision is specifically
limited to the enforceability of the underlying judgment against Hanover in New York.

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

Bard v. Jahnke

READ, J.:

The accident underlying this litigation occurred on September 27, 2001 at Hemlock Valley Farms in Otsego County, a dairy farm owned and operated by defendant Reinhardt Jahnke and his wife in partnership with their two sons. At roughly 8:00 A.M., plaintiff Larry Bard, a self-employed carpenter, arrived at the farm to meet defendant John Timer, another self-employed carpenter. One of Jahnke's sons had asked Timer to repair ripped cow mattresses in a certain section — called the "low cow district" — of the farm's free-stall dairy barn. This large [*2]barn, which was divided into several sections, housed approximately 400 cows at the time, 130 of them in the low cow district. The repair work involved chiseling off the bolts fastening the damaged mattresses to the concrete base of a stall, stretching the mattresses and then re-fastening the bolts. Timer had asked Bard the day before if he would be interested in helping him carry out this task, and Bard had replied that he would.

Timer, who had performed carpentry and odd jobs on the farm for about four or five years, walked Bard through the dairy barn, pointing out some of the projects that he had completed and where the milking parlor was. Timer took Bard to the barn's low cow district, told him how to start the mattress repairs, and then left to complete another chore, planning to return shortly. Neither Timer nor Bard saw a bull; Bard testified that he saw no farm animals at all in the barn when he walked through it with Timer. From his previous work at the farm, Timer knew there was a bull at another barn about a quarter-mile distant from the dairy barn. Prior to Bard's accident, he did not know that at all times there was a bull present in the dairy barn's low cow district.

Bard retrieved some tools from his truck and started to work at about 8:30 A.M. He testified that a number of cows wandered into the area as he was working. Further, he was "familiar with working in and around cows," which would "come up, drool on you, lick on you and everything else," and that he "didn't usually pay much attention to them." At about 9:00 A.M., as Bard was down on his knees removing bolts, he first noticed a bull "[w]hen he stepped in behind him" and "bellered" within a distance of two to three feet. Bard testified that he "slowly kind of looked around, and didn't know what to do at that point." As he "went to stand up," the bull "took [him] in the chest. [The bull] charged [him] then . . . [and] proceeded to slam [him] into the pipes" in the stall. No one else was present in the low cow district at the time. Neither Jahnke nor anyone else associated with the farm knew ahead of time that Timer planned to repair the mattresses that day, or that Bard would be working for Timer to carry out this task.

Bard pulled himself outdoors through an opening at the bottom of the barn, and crawled over to his truck, where he lay for "quite awhile to get some wind and establish what was going on." He caught the attention of someone working in the field, whom he asked to call an ambulance. Bard's injuries included fractured ribs, a lacerated liver and exacerbation of a preexisting cervical spine condition.

The hornless dairy bull who injured Bard was named Fred. He was about 1½-years old, and had been the resident "cleanup" bull at the farm for at least six months prior to September 27, 2001. The cows and heifers on the farm are bred by artificial insemination. Fred was housed and roamed freely in the low cow district of the dairy barn so that he might impregnate cows stabled there who had failed to conceive by artificial insemination. Before this accident, Fred had [*3]concededly never threatened or injured any other farm animal or human being. As was the case with all the dairy bulls ever owned by Jahnke, a longtime dairy farmer, Fred was never chained, caged or barricaded within the barn. Prior to September 27, 2001, none of the bulls on any of the farms worked on or owned by Jahnke had ever acted aggressively toward, or injured, another farm animal or human being.

Bard, with his wife suing derivatively, commenced an action against both Jahnke and Timer to recover damages for his personal injuries, alleging causes of action sounding in strict liability and negligence. Plaintiffs subsequently moved for summary judgment on liability, and defendants cross-moved for summary judgment dismissing the complaint. Ruling on defendant's cross motion,^[FN1] Supreme Court first observed that New York's appellate courts had been "markedly consistent" in applying the common-law vicious propensity rule to decide whether owners of dogs and cats were liable for injuries caused by their animals. Citing the Restatement (Second) of Torts § 518 and prior cases in the Appellate Division, however, the court concluded that a different rule applied to owners of domestic animals other than dogs and cats. According to Supreme Court, these owners are subject to "some duty of enhanced care" to restrain or confine the animal or to warn a human being who might come into contact with it. Applying this rule to the facts, Supreme Court granted defendants' motions for summary judgment because Jahnke did not know that Bard would be at his farm or working in the dairy barn, and Timer was unaware of the cleanup bull's presence in the barn.

The Appellate Division affirmed, but on a different basis altogether. Noting that a bull is a domestic animal as defined in Agriculture and Markets Law § 108(7) and citing our recent decision in Collier v Zambito (1 NY3d 444 [2004]), the court concluded that Jahnke was not liable for Bard's injuries unless he knew or should have known of the bull's vicious or violent propensities. The court noted that the record contained no evidence of this, and "[t]o the contrary, it contains competent evidence establishing that, prior to [Bard's] accident, the subject bull had never injured another person or animal or behaved in a hostile or threatening manner" (16 AD3d 896, 897 [3d Dept 2005]).

Bard had submitted the affidavit of a professor of animal science, who opined that "bulls, in particular breeding bulls, are generally dangerous and vicious animals," and that therefore Jahnke should have restrained the bull or warned Bard of its presence (id.). The court found this affidavit unavailing, especially in light of its "consistent[], and recently[] reiterated" view that "the particular type or breed of domestic animal alone is insufficient to raise a question of fact as [*4]to vicious propensities" (id. [quotation marks and citations omitted]).

Finally, with respect to Bard's negligence claim, the Appellate Division noted that it had "considered and declin[ed] to adopt the enhanced duty rule espoused under certain limited circumstances by the First and Second Departments" (id. at 898). Bard subsequently sought to appeal so much of the court's order as affirmed the grant of summary judgment to Jahnke. We granted him leave to appeal, and now affirm on the ground adduced by the Appellate Division.

Only two years ago, in Collier, we restated our longstanding rule

"that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation"

(Collier, 1 NY3d at 446 [quotation marks and citations omitted];
see also NY PJI 2:220 [2006]).
Once this knowledge is established, the owner faces strict liability ^[FN2]. We made two additional points in Collier, which bear repeating.

First, while knowledge of vicious propensities "may of course be established by proof of prior acts of a similar kind of which the owner had notice," a triable issue of fact as to whether the owner knew or should have known that its animal harbored vicious propensities may be raised by proof of something less (Collier, 1 NY3d at 446). In Collier, a case in which a dog bit a child, we gave the example of evidence that a dog had, for example, "been known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained" (id. at 447). "In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — albeit only when such proclivity results in the injury giving rise to the lawsuit" (id.).

Here, Fred had never attacked any farm animal or human being before September 27, 2001. He had always moved unrestrained within the limits of the barn's low cow district, [*5]regularly coming into contact with other farm animals, farm workers and members of the Jahnke family without incident or hint of hostility. He had never acted in a way that put others at risk of harm. As a result, Bard cannot recover under our traditional rule.

Bard therefore argues alternatively that he can recover under a common-law cause of action for negligence, as expressed in the Restatement (Second) of Torts § 518 (1977), Comments g and h. This common-law cause of action is, he claims, separate and apart from and in addition to our traditional rule.

Section 518 provides generally that the owner of a domestic animal, which the owner does not know or have reason to know to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm, or is negligent in failing to prevent harm. Comment g, "Knowledge of normal characteristics" provides that

"[i]n determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics. Thus the keeper of a bull or stallion is required to take greater precautions to confine it to the land on which it is kept and to keep it under effective control when it is taken from the land than would be required of the keeper of a cow or gelding."

Comment h, "Animals dangerous under particular circumstances" states that

"[o]ne who keeps a domestic animal that possess only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. Thus the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects and must exercise greater precautions to keep his bull under complete control if he drives it upon a public highway. So, too, the keeper of an ordinarily gentle bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings."

Building on these provisions and their specific references to bulls, Bard contends that because Fred was not only a bull, but a breeding bull housed with the herd over whom he exercised dominance, Jahnke was negligent in failing to restrain Fred,^[FN3] or to warn non-farm [*6]personnel of his presence. But this is no different from arguing that Jahnke was negligent in that he should have known of Fred's vicious propensities because — as plaintiffs' expert put it — "bulls, in particular breeding bulls, are generally dangerous and vicious animals."

As already noted, an animal's propensity to cause injury may be proven by something other than prior comparably vicious acts. As a result, a common shorthand name for our traditional rule — the "one-bite rule" — is a misnomer. We have never, however, held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Similarly, we have never held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class. We decline to do so now, or otherwise to dilute our traditional rule under the guise of a companion common-law cause of action for negligence. In sum, when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier.

Accordingly, the order of Appellate Division should be affirmed, with costs.


R. S. Smith, J. (dissenting):

Under the Restatement (Second) of Torts, the owner of a domestic animal who does not know or have reason to know that the animal is more dangerous than others of its class may still be liable for negligently failing to prevent the animal from inflicting an injury. This Court today becomes the first state court of last resort to reject the Restatement rule. I think that is a mistake. It leaves New York with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions.

In this case, as the majority seems to recognize, a jury could have found Jahnke to be negligent, though he had no reason to think that Fred was any more dangerous than any other breeding bull. An expert's affidavit provides the unsurprising information that all breeding bulls are dangerous, because they "have high libido," and "will challenge or attack . . . unknown individuals, in order to establish dominance over the herd." Jahnke knew that Fred was in the low cow district of the dairy barn, and a jury could have found that he was negligent in failing to impart this information to Timer; Jahnke knew that Timer worked in that barn from time to time, though he did not know that Timer had arranged for Bard to work there on the day of the [*7]accident. The record shows that, if Timer or Bard had known of Fred's presence, either of them could easily have erected a partition to exclude Fred from the area where Bard was working.

Thus, if ordinary negligence principles apply here, this case should not have been dismissed. The Restatement says that ordinary negligence principles do apply: With exceptions not relevant here, "one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if . . . he is negligent in failing to prevent the harm" (Restatement [Second] of Torts § 518 [1977]). The comments to this Restatement section, quoted in the majority opinion (p 8-9), point out the application of this rule specifically to bulls: "[T]he keeper of a bull or stallion is required to take greater precautions . . . than . . . the keeper of a cow or gelding" (Restatement [Second] of Torts § 518, cmt g); "the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects . . . " (id., cmt h).

Courts in at least 20 states appear to follow the Restatement rule (e.g. White v Leeder, 149 Wis2d 948, 440 NW2d 557 [1989]; Duren v Kunkel, 814 SW2d 935 [Mo 1991] [en banc]; Gardner v Koenig, 188 Kan 135, 360 P2d 1107 [1961]; Sybesma v Sybesma, 534 NW2d 355 [SD 1995];)^[FN4]. The only court outside New York to have ruled otherwise, so far as I know, is the Georgia Court of Appeals (Moseley v Barnes, 245 Ga App 817, 538 SE2d 873 [2000]). In New York, the departments of the Appellate Division are divided on this issue. The Second [*8]Department has allowed negligence recovery (e.g. St. Germain v Dutchess County Agric. Socy., 274 AD2d 146 [2d Dept 2000]), as has the First Department in some circumstances (e.g. Schwartz v Erpf Estate, 255 AD2d 35 [1st Dept 1999]). The Third and Fourth Departments have rejected negligence recovery (Shaw v Burgess, 303 AD2d 857 [3d Dept 2003]; Smith v Farner, 229 AD2d 1017 [4th Dept 1996]), though an earlier Third Department case had allowed it (Lecznar v Sanford, 265 AD2d 728 [3d Dept 1999]).

Before today, our Court's opinions were consistent with the Restatement rule. Our most recent case involving animal-inflicted injuries, Collier v Zambito (1 NY3d 444 [2004]), did not address the question of whether general negligence principles were applicable in such cases. Collier involved the rule, correctly stated by the majority here, that an owner who knows or has reason to know of an animal's dangerous propensities faces strict liability (Majority op p 6; accord Restatement (Second) of Torts § 509 [1977]). The only issue in Collier was whether the defendant should have known of the dangerous propensities of her dog. Probably most cases involving cats and dogs will turn, as Collier did, on this issue; when the owner of a household pet has no reason to think the animal unusually aggressive, there will often be no basis for a finding of negligence. Our more relevant decisions are older ones, most of them involving bulls and horses.

No opinion of our Court before today announced the rule, now adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face — that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned. This rule was stated, before our Court existed, by the Supreme Court of Judicature in a case involving a horse gored by a bull: "If damage be done by any domestic animal, kept for use or convenience, the owner is not liable to action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief" (Vrooman v Lawyer 13 Johns 339 [1816]). Cases after 1816, however, gave reason to doubt this statement was correct.

Thus in Dickson v McCoy (39 NY 400, 401 [1868]), a case involving a horse turned loose in a public street, Judge Dwight of our Court stated a rule like that of the Restatement: "It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner's negligence." (See Restatement [Second] of Torts § 518, cmt e.) In Benoit v The Troy and Lansingburgh R.R. Co. (154 NY 223, 227 [1897]), we rejected liability in a case where horses had run out of control in the street, but left open the possibility of recovery based on negligence in a proper case, saying that an owner who did not know his horses to be vicious could not be liable "in the absence of negligence." And in Hyland v Cobb (252 NY [*9]325, 326-327 [1929]), though again ruling for the defendant, we cited Dickson for the proposition that "negligence by an owner, even without knowledge concerning a domestic animal's evil propensity, may create liability." Concededly, we later affirmed without opinion two Appellate Division cases that seem to stand for a narrower rule (Kennet v Sossnitz, 260 App Div 759 [1st Dept 1940], affd 286 NY 623 [1941]; Brown v Willard, 278 App Div 728 [3d Dept 1951], affd 303 NY 727 [1951]). Nevertheless, it is surprising to find today's Court rejecting the Restatement and the overwhelming weight of authority in other states, in favor of a rule stated 190 years ago that we have never otherwise endorsed.

For all the faults of modern tort law, and they are many, I do not think that this attempt to cling to the certainties of a distant era will work out well. The rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull? Why should a person hit by a subway train be able to recover and one hit by a breeding bull be left without a remedy? I think there are no good answers to these questions, and it is possible to imagine future cases that will put the rule adopted by the majority under strain. Suppose, for example, a variation on the facts of Collier: What if defendant there had encouraged a child to play not with a grown dog, but with a litter of puppies, thus predictably provoking an otherwise gentle mother dog to rage? Or suppose facts like those in Duren v Kunkel (814 SW2d 935 [Mo 1991] [Holstein, J.]), where a bull was stirred to attack because his owner negligently caused him to be driven through an area where fresh blood was on the ground? In such a case, we could either deny recovery to a deserving plaintiff, despite negligence more blatant than what Jahnke is accused of here, or we could invent a "mother dog" exception or a "fresh blood" exception to the rule adopted in this case. I think it would be wiser to follow the Restatement rule, as has almost every other state that has considered the question.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Read. Chief Judge Kaye and Judges Ciparick and Graffeo concur. Judge R.S. Smith dissents and votes to reverse in an opinion in which Judges
G.B. Smith and Rosenblatt concur.
Decided May 2, 2006

Footnotes

Footnote 1:Plaintiffs withdrew their motion for summary judgment at oral argument.

Footnote 2:Our rule is virtually identical to the Restatement (Second) of Torts § 509 (1977): "A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm."

Footnote 3:Fred was, of course, restricted to the low cow district of the barn. He was not, in any sense, "loose": he neither escaped nor was he taken from the confines within which he was normally kept, and he was not driven upon a public highway, the specific situations referenced in Comments g and h, respectively.

Footnote 4:Other cases include: Baker v McIntosh (132 SW2d 230 [Ky. 2004]); Savory v Hensick (143 SW3d 712 [Mo Ct. App. 2004]; Borns ex rel. Gannon v Voss (70 P3d 232 [Wyo 2003]; Gehrts v Batteen (620 NW2d 775 [SD 2001]); Moura v Randall (110 Md App 632, 705 A2d 334 [1998]; Jividen v Law (194 W Va 705, 461 SE2d 451 [1995]); Trager v Thor (445 Mich 95, 516 NW2d 69 [1994]); Dunnings v Castro (881 SW2d 559 [Tex Ct. App. 1994]); Ross v Lowe (619 NE2d 911 [Ind 1993]); Humphries v Rice, 600 So2d 975 [Ala 1992]); Andrade v Shiers (564 So2d 787 [La Ct. App. 1990]); DeRobertis v Randazzo (94 NJ 144, 462 A2d 1260 [1983]); Rickrode v Wistinghausen (128 Mich App 240, 340 NW2d 83 [1983]); Medlyn v Armstrong (49 Or App 829, 621 P2d 81 [1980]); Arnold v Laird (94 Wash 2d 867, 621 P2d 138 [1980]); Griner v Smith (43 NC App 400, 259 SE2d 383 [1979]); Vigue v Noyes (113 Ariz 237, 550 P2d 234 [1976]); Humber v Timmons, 184 Neb 718, 171 NW2d 794 [1969]; Saldi v Brighton Stock Yard Co. (334 Mass 89, 181 NE2d 687 [1962]).

Oliva v.Gross


Robert P. Macchia, Mineola, N.Y. (Sara A. Toler of counsel),
for appellants.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated April 20, 2005, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). To defeat the defendants' motion, the plaintiff was required to come forward with competent admissible medical evidence, based on a recent examination and objective findings, sufficient to verify her subjective complaints of pain and limitation of motion (see Farozes v Kamran, 22 AD3d 458; Ali v Vasquez, 19 AD3d 520; Batista v Olivo, 17 AD3d 494). The plaintiff failed to meet her burden in opposition to the defendants' prima facie showing as she submitted only the affirmation of her counsel, which was not based on any personal knowledge of the facts, a copy of her own deposition testimony, a copy of a motor vehicle accident report, and color photographs of her damaged vehicle.

Moreover, the plaintiff failed to submit any medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days immediately [*2]following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569; Arshad v Gomer, 268 AD2d 450).

Accordingly, the Supreme Court erred in denying the defendants' motion for summary judgment.
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Best v. Progressive Casualty Insurance Company

Nesci Keane Piekarski Keogh & Corrigan, White Plains, N.Y.
(Jason M. Bernheimer of counsel), for appellant.
Kevin J. Quaranta, Mount Kisco, N.Y., for respondents.

In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered September 28, 2005, which denied its motion for summary judgment dismissing the complaint.

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

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the plaintiffs failed to serve it with a copy of the unsatisfied judgment they obtained against the defendant's insured, with notice of entry, 30 days before they commenced this direct action against it, as required by Insurance Law § 3420(a)(2). Compliance with the requirements of Insurance Law § 3420(a)(2) is a condition precedent to maintenance of a direct action under that statute (see McNamara v Allstate Ins. Co., 3 AD2d 295, 299). In opposition to the motion, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint. [*2]
CRANE, J.P., GOLDSTEIN, LUCIANO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Cerisier v. Thibiu

Harmon, Linder & Rogowsky, Mineola, N.Y. (Mitchell Dranow
of counsel), for appellant.
Lynch and Lynch, Brooklyn, N.Y. (Amy M. Crawford of
counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated February 15, 2005, as granted that branch of the defendant's motion which was for summary judgment dismissing the first cause of action on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; see also Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiff failed to raise a triable issue of fact. The submissions of the plaintiff's treating physician and neurologist, as well as his examining orthopedist, were not based upon recent examinations (see Murray v Hartford, 23 AD3d 629; Farozes v Kamran, 22 AD3d 458; Batista v Olivo, 17 AD3d 494; Constantinou v Surinder, 8 AD3d 323; Kauderer v Penta, 261 AD2d 365). The magnetic resonance images of the plaintiff's cervical and lumbar spine which showed bulging discs, did not, alone, establish a serious injury (see Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241; see also Hernandez v Taub, [*2]19 AD3d 368). The mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Kearse v New York City Tr. Auth., supra; Diaz v Turner, supra; see also Pommells v Perez, 4 NY3d 566). Therefore, the defendant was entitled to summary judgment dismissing the first cause of action.
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer