Coverage Pointers - Volume VII, No. 23

Dear Coverage Pointers Subscribers:

Thank you to the fine folks at GuideOne in Indy for their hospitality this week. Loved the barbecue and the time we spent together. Sunday, I travel to Washington, for the Lawyers for Civil Justice meeting.

Speaking of travel ...

As many of you know, I am doing a good deal of travel this year and next for the Federation of Defense & Corporate Counsel but not all of you know why. Please allow me a moment to explain that commitment.

The FDCC serves the insurance industry, self-insureds and defense attorneys throughout the United States. Seventy years old this year, its stated goal is to "assist in establishing standards for providing competent, efficient and economical legal services; to encourage and provide for continuing legal education for its members; and to use the knowledge and experience of its membership for the promotion of public good."

We embrace all phases of the defense and corporate communities. Our corporate members include executives with national and regional responsibilities for self-insureds, insurance companies and third party administrators. Our lawyers in private practice are involved in everything from the defense of tort and commercial claims, to handling insurance coverage and regulatory matters and employment and commercial claims. Our organizational logo contains three very important words: "Knowledge," "Justice," and "Fellowship." The FDCC is very selective in its membership, and has 1300 members. We have approximately 1050 defense counsel (at our maximum capacity) and the others are claims executives and attorneys from insurers and self-insureds.

One of the ways we serve "justice" is to participate in Lawyers for Civil Justice (LCJ), an organization of defense attorneys and corporations seeking to balance the playing field to be sure that our voices are heard in Congress and in the state legislatures

I serve as President-Elect of the Federation of Defense & Corporate Counsel and will assume the presidency in August. The honor of serving my fellow attorneys throughout the US and the world and the insurance industry and the corporate members is surely highest and most humbling professional honor I can imagine ever receiving. My firm has been kind enough to recognize the importance of this service to those we represent and I hope you can accept and understand the reason for the travel and the time commitment. I am always available to my clients my cell phone, e-mail and fax and my office is "staffed-up" to provide extra back-up during this service.

Many of you know some of the programs the FDCC runs, including the Litigation Management College and its Graduate Program, the Corporate Counsel Symposium and the Law Firm Management Conference and many of you, and others in your organization, have attended those terrific programs.

Anyway, just so you know. Now, back to Coverage Pointers.

In this week's issue, we review two "bad faith" cases decided by New York appellate courts in the past two weeks. But first, today's trivia question: how many "bad faith" insurance cases have been decided by New York State appellate courts in the 12 months preceding this issue of Coverage Pointers, excluding the two reviewed in this week's edition? We play by the "Price is Right" rules - the closest to the right number wins, so long as you don't exceed the correct answer:

(a) 30 (b) 24 (c) 18 (d) 12 (e) 6

The correct answer is (e).

It is very difficult to establish bad faith in New York and the two decisions this week are yet two more examples why. One case involves a "time-limited" demand for policy limits to which the carrier did not respond as requested. "No bad faith," holds the Appellate Division, where the demand was made two days after the law suit was commenced and the insurer had not yet conduct depositions or had independent medical examinations and there were questions of liability as well. Lavaud v. Country-Wide Insurance Company.

In Flores-King v. Encompass Insurance Company general allegations of "bad faith" and "unfair dealing" were not enough to sustain a bad faith complaint. "The complaint must state a claim of egregious tortious conduct directed at the insured claimant. Only then does an alleged pattern of bad-faith conduct attain legal significance insofar as it demonstrates that a public wrong would be vindicated by the award of punitive damages."

By the way, the answer (e) 6 would also be correct to the question: how many "bad faith" insurance cases have been decided by California appellate courts in the one month preceding this issue of Coverage Pointers.

You'll also find an array of cases on the right of an injured party to give notice of accident (even when the insured doesn't), additional insured status, uninsured motorist coverage and the usual array of "serious injury" cases along with Audrey's Angles on No Fault.

All the best and keep those cards and letters coming in.

Dan
Dan D. Kohane
[email protected]

5/9/06 Bernard v. Mumuni
New York Court of Appeals

Is Leaving the Keys ont the Table Implied Permission to Drive the Car and Allow Others to Drive it? Court of Appeals Says, “Maybe.”
How does the plaintiff prove, or the owner disprove, implied permission to drive a car? ?The Court of Appeals affirms in this personal injury action arising after the plaintiff was involved in an accident with a minivan owned by the defendant. At the time of the accident the defendant had entrusted the minivan to a friend and the friend's son had taken the minivan without express permission. The Appellate Division affirmed the denial of the defendant's motion for summary judgment after finding there was an issue of fact as to whether the father had given the son implied consent to use the minivan by leaving the keys on the kitchen table. The Appellate Division decision included an excellent discussion, in majority opinion, and dissent, about rules relating to implied permission to drive a car.

5/9/06 Morejon v. Rais Construction Company
New York Court of Appeals

High Court Reaffirms the Tough Plaintiff’s Burden of Proof on Res Ipsa Cases – When Can You Prove Fault, Automatically, From the Circumstances of the Incidcent?
The Court cites from its 1941 decision in George Foltis, Inc. v City of New York,(287 NY 108, where they reversed the grant of a directed verdict for the plaintiff. The Foltis Court emphasized that when dealing with res ipsa loquitur, the indiscriminate use of the terms "presumption" and "inference" caused confusion. The Court held that res ipsa loquitur does not create a presumption of negligence against the defendant. Rather, the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent and that res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is unrefuted.

The Court of Appeals stands by those principles, and in the context of this appeal, reaffirms that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable.

5/16/06 Allstate Insurance Company v. Marcone

Appellate Division, Second Department

The Injured Party Can Give Notice of an Accident, and if Notice is Late, Excuses May be Considered. Lack of Sophistication and Inability to Understand English Not Reasonable Excuse for Delay in Making Claim – but Sending Out Letters to Everyone in the Phone Book with the Same Name Seeking Coverage Information MAY be Enough

Editor’s Note – We love this case. Outstanding facts.

The decedent and Marcone were deer hunting together when Marcone accidentally shot and killed the decedent. Marcone lived with his mother, the defendant Nelda Marcone, who was a named insured on homeowner's and umbrella insurance policies issued by Allstate. Both policies required the insured to promptly notify Allstate of any occurrence for which coverage was sought.

The administratrix of the decedent's estate, commenced a wrongful death action against Marcone and the other parties. Marcone advised Allstate of the hunting accident and the resulting wrongful death action, and forwarded to Allstate a copy of the summons and complaint, which had been served on Marcone on December 19, 1997. Allstate disclaimed coverage on the ground that Marcone and his mother had not given Allstate prompt written notice of the hunting accident.

The Court holds that Allstate established its entitlement to judgment as a matter of law by demonstrating a delay of more than two years between the hunting accident and the notice of the accident sent to it by Marcone. The Supreme Court properly determined that the excuses proffered by Marcone, which were based primarily on his alleged lack of sophistication and unfamiliarity with insurance claims and his mother's inability to understand the English language, were insufficient to raise a triable issue of fact as to the reasonableness of the two-year delay .

However, all is not lost for the Estate’s desire to have coverage. The attorney for the Estate didn’t know where Marcone lived so on two occasions he mailed letters to Marcone, in care of every individual listed in the Manhattan and Bronx telephone directories who shared his surname, advising Marcone that Iossa intended to commence a wrongful death action against him and requesting that he forward the letter to his homeowner's insurance carrier. Iossa's attorney also made an unsuccessful attempt to obtain the results of the New York State Police investigation of the hunting accident. Iossa retained new counsel, who was finally able to confirm Marcone's address in October 1997.

Remember, the injured party has a right to give notice of a claim to an insurance carrier in New York and must demonstrate a reasonable attempt to find the carrier. Here, you have to give the claimaint an “E” for effort, and the Court did indeed do so. The Court concluded that a triable issue of fact exists as to whether Iossa made a reasonably diligent effort to locate Marcone and his insurer and to provide notice to the insurer itself. Iossa's diligence in locating Marcone for the purpose of providing notice to his insurer could be found by a rational trier of fact to be reasonable. Accordingly, summary judgment was not appropriate.

5/16/06 Natural Stone Industries, Inc. v. Utica National Assurance Company

Appellate Division, Second Department

Additional Insured Status is Question of Fact When Policy Included as Insureds Those Listed on Certificates and Certificate Was Not Clear

Although the parties' written contract contained no reference to insurance, the principals of both companies allegedly entered into an oral agreement requiring Star Structurals to procure liability insurance coverage, and to name Natural Stone as an additional insured on its policy. Star Structurals subsequently procured a liability insurance policy from Transcontinental. The Transcontinental policy did not identify Natural Stone as an additional insured . However, the policy contained a provision in which it defined an "insured" to include any person or organization whom the insured was "required to add as an additional insured on this policy under . . . an oral contract or agreement where a certificate of insurance showing that person or organization as an additional insured has been issued." A certificate of insurance issued to Star Structurals by its insurance broker contained a box captioned "Certificate Holder" on one side, and "Additional Insured" on the other side. National Stone's name appears inside this box, in between the two captions.

The Court holds that the certificate is ambiguous on its face, and does not clearly label Natural Stone as either a certificate holder or additional insured. Under these circumstances, Transcontinental failed to sustain its prima facie burden of establishing that it is entitled to judgment as a matter of law because Natural Stone was not an additional insured as the term was defined by the policy.

Furthermore, the certificate of insurance was prepared by an insurance brokerage company, and not by Transcontinental. The certificate of insurance was not itself incorporated into Transcontinental's policy merely because the definition of "insured" included any organization whom the insured was required to add as an additional insured pursuant to an oral agreement "where a certificate of insurance showing that . . . organization as an additional insured has been issued." Accordingly, the issue of whether the certificate of insurance was intended to name and did in fact name Natural Stone as an additional insured must await resolution at trial.

5/16/06 Allcity Insurance Company v. Rhymes

Appellate Division, Second Department

JHO Exceeded Authority in Preliminary Hearing on UM Claim

This was a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim. Allcity provided uninsured/underinsured coverage for the cab involved in an accident with another vehicle (Coons vehicle) pursuant to a policy issued to the owner and commenced this proceeding for a permanent stay of arbitration. Allcity alleged that the offending vehicle involved in the underlying accident was, in fact, the Coons vehicle, and that the vehicle was insured on the date in question. The Supreme Court referred the matter to a judicial hearing officer (hereinafter the JHO) to "determine all issues preliminary to arbitration, including the issue of the identity and participation of the Coons vehicle in this accident." The order of reference directed the JHO to hear and determine "all issues raised in the papers." After a hearing, the JHO determined that the Coons vehicle was not involved in the underlying accident. However, the JHO granted the petition based on the lack of any evidence that the appellants were involved in the underlying accident. On appeal, the appellants argue that the JHO exceeded the scope of the order of reference in making such a determination. The Appellate Division agrees. Nowhere in the petition or in any of the other papers submitted to the court did any party or proposed party raise an issue as to whether the appellants were involved in the underlying accident.

5/16/06 Lavaud v. Country-Wide Insurance Company

Appellate Division, Second Department

Failure to Respond to Time Limited Settlement Demand Did Not Constitute Bad Faith in this Case

This was an action to recover damages for the bad faith refusal to settle a personal injury claim.

Country-Wide met its prima facie burden of establishing that it did not breach its duty of acting in good faith. Country-Wide's failure to respond to a time-restricted demand within the full policy limits did not, under the circumstances, constitute a gross disregard of the interests of the insured. What were the circumstances? We had to look at the lower court decision to find out:

· The Plaintiff made one settlement demand and left the policy limit offer demand open for only 10 days

· The demand was made two days after the lawsuit was commenced

· The carrier took three months to respond

· The Court of Appeals, in Pavia, has “frowned” upon time-limited demands giving rise to bad faith in Pavia, 82 NY 2d 445 at 455.

· The carrier had not yet conducted independent medical examinations

· The carrier had not yet conducted a deposition of the plaintiff to explore issues of liablitity and damages

· Contrary to plaintiff’s argument that there was no doubt about defendant’s negligence, the jury eventually determined that the plaintiff was 30% to blame

Counseling point: The high court in Pavia makes it clear that the carrier must respond to settlement demands and cannot act in bad faith, “reckless disregard” of the interests of the insured. HOWEVER, an insurer is permitted to complete its investigation and conduct reasonable discovery before making an offer, if that is necessary to resolve disputed issues.

5/16/06 AIG Centennial Insurance Company v. Chunasamy

Appellate Division, Second Department

Disclaimer Over Sixty Days After Notice of Accident Unreasonable as Matter of Law

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the Supreme Court's determination that State Farm was first notified of the subject accident in "[l]ate March of 2004," was supported by a fair interpretation of the evidence. Thus, the Supreme Court properly concluded that State Farm's failure to disclaim until July 12, 2004, was unreasonable as a matter of law.

5/16/06 State Farm Mutual Automobile Insurance Company v. Baltz Concrete

Appellate Division, Second Department

Recovery of APIP Benefits Paid Out Not Barred by NY No Fault Law

The no-fault provisions of the Insurance Law do not bar it from seeking recovery of benefits it paid to its insured for "extended economic loss" pursuant to an "additional personal injury protection" endorsement. However, the defendants established their entitlement to judgment as a matter of law by submitting evidence that the plaintiff's subrogor unsuccessfully sought to recover damages for his extended economic loss from them in a prior action, which culminated in a jury verdict in their favor. An insurance company which has paid additional personal injury protection benefits for extended economic loss has a traditional equitable right of subrogation, and thus acquires only the rights that its subrogor had, with no enlargement or diminution. Since the plaintiff's subrogor unsuccessfully sought to recover damages for extended economic loss in a prior action, the jury verdict in that action is entitled to preclusive effect on the issue.

5/11/06 324 East 9th Street Corporation v Acordia Northeast-New York
Appellate Division, First Department

Insured’s “Practices” in Securing Coverage is Discoverable in its Action Against Broker for Failing to Provide Coverage

Plaintiff asserts that its principal requested agent add it onto existing insurance policies purchased for plaintiff. Agent disagreed, asserting that plaintiff asked only a price quote and that agent believe property already covered by other policies. Agent is entitled to broad discovery of plaintiff’s practices in securing coverage. For example, gaps in coverage for other buildings might indicate a pattern of remiss or inconsistent efforts in obtaining or maintaining coverage

5/9/06 Flores-King v. Encompass Insurance Company

Appellate Division, Second Department

Egregious Conduct Must Be Alleged to State a Claim of Bad Faith as to Insurer

This was an action by the insureds to recover damages for breach of an insurance contract. A complaint does not state a claim for compensatory or punitive damages by alleging merely that the insurer engaged in a pattern of bad-faith conduct. The complaint must state a claim of egregious tortious conduct directed at the insured claimant. Only then does an alleged pattern of bad-faith conduct attain legal significance insofar as it demonstrates that a public wrong would be vindicated by the award of punitive damages. The insureds failed to set forth any facts or allegations to support their contention that the defendant insurers' conduct was egregious or fraudulent, or that it evidenced wanton dishonesty so as to imply a criminal indifference to civil obligations directed at the public generally. Furthermore, it is well established that an insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy.

5/9/06 Allstate Insurance Company v. Williams

Appellate Division, Second Department

Claimant Barred from Relitigating Facts Pertinent to UM Claim

CPLR Article 75 proceeding to stay arbitration of an uninsured motorist claim. The Supreme Court properly applied the doctrine of res judicata to this case as Williams could have contested Allstate's assertions in the prior proceeding, even though the court granted Allstate's petition on default against American Transit. Williams was aware of the other driver’s stolen license plate defense well before filing their initial demand for uninsured motorist arbitration. Thus, after the Supreme Court stayed the arbitration upon the default of American Transit, Williams could have sought a severance of Allstate's claim against them and requested a hearing on the stolen license plate issue. However, they took no further action in that proceeding and did not seek appellate review, but accepted the permanent stay of arbitration and charted their own procedural course by pursuing the negligence action against the other driver. The determination in the prior proceeding was res judicata as to any claims which were raised or could have been raised in that proceeding.

5/9/06 Liberty Mutual Insurance Company v. Goddard

Appellate Division, Second Department

Staged Collision not Entitled to UM Coverage

CPLR Article 75 to stay arbitration of an uninsured motorist claim. State Farm disclaimed coverage of Goddard's injuries on the ground that the collision was intentional and staged. Goddard submitted a claim for UM coverage to Liberty Mutual, which insured the vehicle he was operating. The Court finds that the evidence at the hearing established that the collision was intentional and staged. The Appellate Division affirms a permanent stay of arbitration. Since Goddard's injuries were not the result of an accident, he is precluded from recovering uninsured motorist benefits under Liberty Mutual's policy. It is well settled that an intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance.

5/9/06 Republic Long Island, Inc. v. Vanacore

Appellate Division, Second Department

Slip and Fall in Parking Lot Not Accident ‘Arising Out of Ownership, Maintenance or Use’ of an Automobile but Broker May Face E&O Claim

The underlying action concerned a slip and fall in a parking lot that had been snowplowed by Republic. The appellant requested indemnification and defense in the underlying action from G.M.A.C. The policy contains a standard automobile liability provision which requires the insurers to defend and indemnify their insured for accidents resulting in bodily injury or property damage, arising out of the "ownership, maintenance, or use" of the insured vehicle. The Supreme Court properly found that the accident was not covered by the above "use and operation" clause, because the injuries "did not result from the intrinsic nature of the motor vehicle as such, nor did the use of the automobile itself produce the injury, but, at most, contributed to the condition which produced it."

However, the Supreme Court should have denied the separate motion of Vanacore (the broker), for summary judgment. "Generally . . . insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so" (Murphy v Kuhn, 90 NY2d 266). In opposition to the motion, Republic submitted an affidavit from its principal in which he stated that the broker failed to advise him of its inability to procure general liability coverage for the appellant's snowplowing activities. This was sufficient to raise a question of fact as to whether the broker failed to exercise due care in the transaction.

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

5/18/06 Haddadnia v. Saville

Appellate Division, Third Department

Detailed Affidavit of Plaintiff’s Treating Physician Raises Question of Fact

In this threshold motion, plaintiffs' proof included the affidavit of plaintiff’s treating physician who was fully familiar with plaintiff's medical history both before the accident (when he treated him for an elbow injury and a cyst on his finger) and subsequent thereto. He opined with a reasonable degree of medical certainty that the foot fracture was caused by the accident and set forth the reasons for the delay in the diagnosis. Furthermore, plaintiff’s doctor explained that it was not unusual for an individual with "trauma to multiple areas of the lower body to not fully appreciate/recognize the significance of pain to any one particular area due to pain and numbness in another area." He added that the pain and numbness in plaintiff's back and lower extremities created a situation where he was "unable to fully appreciate the injury to his foot until the numbness he experienced in his back and leg subsided, revealing the full extent of the pain he was suffering in his left foot." He further observed that the manner in which the accident occurred was, in his opinion, consistent with causing the type of fracture that plaintiff sustained. Saunders directly addressed defendants' suggestion that the fracture predated the accident, indicating that no objective medical proof supported that suggestion and adding that he had treated plaintiff for over a year before the accident "with absolutely no complaints of pain in the foot." While defendants submitted proof from experts contesting virtually every aspect of Saunders' opinions, that proof gives rise to a dispute among experts for the jury to decide.

5/18/06 Bray v. Rosas

Appellate Division, First Department

Failure to Compare Range of Motion to Normal Range Fatal to Threshold Motion

Defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury as a result of this accident. Although defendants' orthopedist specified the degrees of range of motion found in plaintiff's lumbar spine, he failed to compare those findings to the normal range of motion, "thereby leaving the court to speculate as to the meaning of those figures.” While plaintiff appears to have abandoned his claim of injuries to the cervical spine, the Court observed that defendants' orthopedist not only failed to identify normal range of motion of the cervical spine, but also failed to specify the degrees of range of motion in plaintiff's cervical spine.

5/16/06 Moore v. Sarwar

Appellate Division, Second Department

Plaintiff Failed to Show Serious Injury amidst Scant Proof from Treating Medical Providers and Gap in Treatment

Plaintiff failed to raise a triable issue of fact in opposition to the defendant’s threshold motion. The affidavit of the plaintiff's examining chiropractor impermissibly relied upon the unsworn and/or unaffirmed reports of a hospital and two doctors. In addition, the chiropractor failed to acknowledge or account for a prior accident involving the plaintiff in December 2001 which resulted in a back injury and for which the plaintiff underwent physical therapy. Thus, the chiropractor's findings that the injuries to the plaintiff's spine were caused by the subject accident were speculative. The plaintiff also failed to submit 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 following the subject accident. Moreover, neither the plaintiff nor his examining chiropractor adequately explained the approximately one and one-half year gap in the plaintiff's treatment.

5/16/06 Gavin v. Sati

Appellate Division, Second Department

Post Trial Motion on Serious Injury Reversed and Verdict Set Aside

Jury determined that the plaintiff sustained a medically determined injury or impairment which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for at least 90 out of the 180 days immediately following the accident. Viewing the evidence in the light most favorable to the plaintiff, the Appellate Division finds that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial". Plaintiff’s claim that he was unable to work for eight months following the accident was not supported by any competent medical evidence linking his purported inability to work with his alleged accident-related injuries. Thus, the trial court should have granted the appellants' motion pursuant to CPLR 4404 and set aside the jury verdict and for judgment as a matter of law.

5/16/06 Welch v. Penske Truck Leasing Corp

Appellate Division, Second Department

Evidence of Herniation with Range of Motion Restrictions Sufficient for Denial of Threshold Motion

The affirmed medical report of the defendants' examining physician indicated that magnetic resonance imaging of the plaintiff's cervical and lumbar spine showed a herniation at L5-S1 and bulging discs from C4-5 through C6-7. Notably, the report of the defendants' examining physician specified the degrees of range of motion in the plaintiff's cervical and lumbar spine without comparing those findings to the normal range of motion. Since the defendants failed to meet their initial burden of establishing a prima facie case, the sufficiency of the plaintiff's opposition papers did not need to be considered by the Court.

5/09 Carter v. Full Service, Inc.

Appellate Division, First Department

Two Accidents in Eight Days? Contradictory Evidence + Inadequate Medical Affidavit = Dismissal
In this case, plaintiff's own evidence established that his left-knee injury may well have been caused not by the September 10 accident involving the instant defendants, but by the September 2 accident that took place eight days before. Plaintiff's medical expert, failed to explain how he concluded that the injury was caused by the second accident rather than the first. Plaintiff's own self-serving and conclusory testimony that he did not injure his knee until September 10, in addition to being incredible in view of its contradiction by his own expert and the emergency room records (which do not reflect any knee injury on September 10), was, in the absence of corroborating objective medical evidence, insufficient to raise a triable issue for submission to the jury.

5/09 Rivera v. Benaroti

Appellate Division, First Department

Plaintiff Failed to Show Serious Injury with Proof of Subjective Complaints and Gap in Treatment

Plaintiff conceded that defendants satisfied their burden of proof on their motions for summary judgment on the issue of serious injury, so the burden then shifted to plaintiff to show a triable issue of fact. Defendants' expert determined, based on specific tests, that plaintiff had a full range of motion and that any injuries which may have resulted from the accident were resolved. Another doctor, through affirmation prepared more than 19 months after plaintiff last sought treatment, contradicted those findings. Specific percentages were assigned to the limitations in range of motion, but they did not indicate the specific tests which had produced such percentages. Finally, plaintiff's subjective complaints of pain would not provide a sufficient basis to defeat defendants' summary judgment motion. Plaintiff's unexplained lengthy period without treatment further supports the conclusion that he did not sustain a serious injury as a result of this accident.

5/09 Vishnevsky v. Glassberg

Appellate Division, Second Department

Unsworn Doctor Affidavits and Doctor Reliance on Unsworn Medical Reports Insufficient to Oppose Serious Injury Motion

The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that neither plaintiff, as a result of the accident, sustained a serious injury within the meaning of Insurance Law § 5102(d). Plaintiffs failed to come forward with admissible evidence sufficient to raise an issue of fact, specifically, Dr. Etkind's medical reports, which the plaintiffs relied upon in opposition, were unsworn and thus without probative value. The plaintiffs also relied upon the affirmations of Dr. St. Hill, who impermissibly relied upon the unsworn reports of another doctor. Finally, the operative reports the plaintiffs submitted in opposition failed to causally relate the plaintiffs' injuries to the accident and, thus, were inadequate to raise any issue of fact.

5/09 Legendre v. Bao

Appellate Division, Second Department

Unsworn Doctor Reports Have no Probative Value in Opposition to Defendant’s Motion

Plaintiff failed to establish a triable issue of fact as to whether she sustained a serious injury. The numerous unsworn and unaffirmed reports of her treating doctor, chiropractor, and acupuncturist submitted by the plaintiff were without probative value. Moreover, while two of the medical reports submitted in opposition were properly affirmed, they too failed 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.

5/18/06 In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Stacey E. Charkey, Esq. (Queens County)

Applicant’s Failure to Demonstrate Persistent Deficits Before Electrodiagnostic Testing As Well As How Findings Altered Future Course of Treatment Fatal To Claim.

Here is the Angle: The Applicant failed to establish a prima facie case with respect to the issue of medical necessity after failing to submit any evidence that the eligible injured person had persistent neurological deficits prior to ordering the electrodiagnostic testing coupled with no demonstration as to how the electrodiagnostic testing findings altered the future course of treatment.

The Analysis: Applicant sought reimbursement for EMG/NCV testing performed on the eligible injured person (EIP), which was denial based upon a peer review. The EIP was involved in a March 2, 2005, motor vehicle accident. On May 2, 2005, he treated with a physician complaining of neck and lower back pain. Upon examination, lower extremity motor deficits were noted but the sensory examination was intact. The EIP was referred for an MRI and prescribed physical therapy.

On May 23, 2005, the EIP followed-up with his physician wherein the MRI’s were reviewed revealing a L3/4 and L4/5 posterior central disc herniation indenting the thecal sac. The physician referred the EIP for upper extremity electrodiagnostic studies.

On May 27, 2005, the physician performed lower extremity EMG/NCV testing on the EIP which revealed left L5 radiculopathy.

The insurer sent the electrodiagnostic testing bill and MRI bill to Dr. Joseph Cole for a peer review. Dr. Cole recommended reimbursement for the MRI bill but not for the electrodiagnostic testing as it was not medically necessary.

Arbitrator Sharkey first set forth Applicant’s burden in this no-fault arbitration:

Applicant must prove that the treatment rendered is causally related to the accident, that it was reasonable and that it was medically necessary….In a no-fault arbitration, Applicant bears the burden of proof. It has both the duty of going forward with the evidence and the burden of persuasion as to each element of its claim….Separate and apart from any other issue herein, Applicant, however minimally, must establish a prima facie case regardless of the proof proffered by Respondent. In this matter it was incumbent on Applicant to establish the medical necessity of the testing.

Here, Applicant failed to demonstrate that the electrodiagnostic testing was medically necessary. The Applicant did not submit evidence to demonstrate that the EIP had persistent or continuing and consistent neurological complaints prior to the testing. There was also no evidence of objective persistent neurological deficits of strength, sensation, or reflexes necessitating the electrodiagnostic testing conducted. More importantly, there is no indication that any of the physicians affiliated with Applicant’s facility used the electrodiagnostic testing findings to alter the course of future treatment. Arbitrator Sharkey noted:

Merely performing tests without evaluating and actually utilizing the findings to further the management and treatment of Assignor’s injuries, does not meet the statutory criteria of ‘medical necessity’ and therefore does not rise to the level of a prima facie case.

5/15/06 In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Mary Anne Theiss, Esq. (Onondaga County)

Applicant Intentionally Jumping on Irate Man’s Car Does Not Mean That Applicant Intentionally Caused Her Own Injuries.

Here is the Angle: While this decision does not contain any thought provoking discussion on the no-fault law, the facts provide a good chuckle.

The Analysis: The issue in this arbitration was whether the Applicant’s injuries arose out of the use and operation of a motor vehicle or where a result of Applicant’s intentional act.

On June 13, 2005, the Applicant (20 years old), a senior at the University at Buffalo, attended a back yard party with other students. An individual, apparently intoxicated, became agitated when a group of students painted on him while he was asleep. Thereafter, he threatened the Applicant and her friends.

The individual then apparently got behind the wheel of his car and came up to the Applicant almost striking her. The he apparently had a confrontation with another vehicle. At one point he threw eggs at the Applicant’s vehicle while she was in it and threatened her. The Applicant testified that the individual was hanging out of his car window, yelling at one of her friends and was angry.

In an effort to redirect the man’s attention toward the Applicant, she exited her vehicle and jumped on the trunk of the man’s vehicle, tapping on the back window. With the Applicant still on the vehicle, the man drove off. The Applicant grabbed onto the back window and was dangling until she was eventually thrown from the vehicle.

The insurer denied Applicant’s claim based upon the Applicant intentionally causing her own injuries by climbing onto the vehicle. The Applicant contended that she had no idea that the man would take off in the vehicle with her on it. The Arbitrator found the Applicant did not intentionally cause her own injuries and that she was a pedestrian qualifying for no-fault benefits.

5/11/06 In the Matter of the Arbitration between the Applicant and Respondent

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

Applicant’s $142,039.24 Lost Wage Claim Denied As Evidence Demonstrates He Was Not Employed At The Time Of The Accident And Did Not Intend To Return To Former Seasonal Employer.

Here is the Angle: The insurer was successful in demonstrating that the Applicant was not employed at the time of the accident and did not have employment available to him to return to before this accident occurred.

The Analysis: In this $142,039.24 claim for lost wage benefits the issue was whether the Applicant was unemployed at the time of the accident and if so whether he suffered any loss of earnings.

The Applicant was involved in a September 21, 2002, motor vehicle accident resulting in head, left shoulder, right knee, and cervical and lumbar spine injuries. Arbitrator McCorry noted that the medical evidence demonstrated that the Applicant was totally disabled from his employment.

The Applicant, who was 25 years old, worked as a laborer installing rubberized running tracks. He worked in this position from January 2000 until August 15, 2002. His work was seasonal running from May through November. The Applicant would draw unemployment compensation during the winter months.

In August 2000, Applicant began experiencing mild carpel tunnel like symptoms and decided in August 2002 to have the condition treated. However, in September 2002, he was involved in a motor vehicle accident.

The insurer argued that the Applicant was not employed at the time of the accident as his no-fault application indicates lack of employment. Despite this, the insurer paid Applicant lost wages during his unemployment benefits period which was from January 10, 2003 through February 9, 2003.

The Applicant then requested lost wage benefits on February 21, 2003, and the insurer forwarded an employers wage verification to Applicant’s employer on February 26, 2003. The employer advised that the Applicant was employed through August 23, 2002, and had combined earnings for 2001-2002 of $52,290.88. After a further informal inquiry, the Applicant’s employer also advised that the Applicant would not be hired back as “he had voluntarily quit in August of the previous year.”

Therefore, the insurer determined that the Applicant was not entitled to lost wages as he chose to be unemployed at the time of his motor vehicle accident. Further, the insurer successfully argued that the Applicant could not substantially demonstrate that the employment was available to him. The Applicant responded that he was not unemployed but merely elected to leave his employment early that season.

Arbitrator McCorry held that Applicant was not employed at the time of the accident:

It appeared clear to me that based upon the transcript of Dr. Carstens’ testimony, along with the responses of the injured party on his application for No-Fault Benefits, coupled with the correspondence from his former employer, that the injured party did not intend going back to his former employment.

Accordingly, Applicant’s entire claim was denied.

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.

5/17/06 Wallach v. Allstate Insurance Company
Oregon Court of Appeals

Insurer Liable on Uninsured Motorist Claim Based on Conduct of Phantom Vehicle's Driver
Plaintiff injured when unidentified truck suddenly entered his lane causing him to swerve and hit guardrail. Allstate paid some benefits under plaintiff's coverage for personal injury protection (PIP) but denied claim for uninsured motorist (UM) benefits. Policy defined "uninsured auto" to include "a phantom motor vehicle". Before filing breach of insurance contract action, plaintiff was involved in two subsequent automobile accidents which he claimed worsened the injuries sustained in the initial accident. Action alleged breach of PIP and UM provisions and that Allstate owed benefits for injuries due to initial accident as well as for later aggravation of those injuries. Trial court granted summary judgment to plaintiff on Allstate's liability under policy and jury returned verdict awarding damages under PIP and UM provisions. Allstate appealed, asserting that trial court erred in granting partial summary judgment and in instructing jury on determining extent of Allstate's liability for injuries subsequent to initial accident. Court of Appeals affirmed partial summary judgment on issue of Allstate's liability for conduct of the phantom vehicle's driver, and remanded for a new trial on the extent and amount of liability after concluding that the contested jury instruction constituted prejudicial error.

Submitted by: Gregory L. Cochran (McKenna Storer)

5/16/06 Perdue Farms v. Travelers Casualty
U.S. Court of Appeals, Fourth Circuit

Insurer Not Required to Indemnify under ERISA Violation Policy for Non-Covered Wage and Hour Claims

Insurer issued policy covering claims based on violations of the Employee Retirement Income Security Act of 1974 (ERISA) but not covering claims for violations of wage and hour laws. Insurer defended insured in class action suit seeking relief under both ERISA and wage and hour statutes, but declined to indemnify insured for subsequent $10 million settlement, contending that settlement was based predominately, if not completely, on non-covered wage and hour claims. District court held that insured was entitled to indemnification for the settlement and that insurer could not obtain partial reimbursement of defense costs. Court of Appeals affirmed district court denial of reimbursement of defense costs, but remanded for further proceedings on settlement indemnification, with district court to determine how apportionment between covered ERISA claims and non-covered wage and hour claims should proceed.

Submitted by: Gregory L. Cochran (McKenna Storer)

5/16/06 Merchants Mutual Insurance Company v. Laighton Homes

Supreme Court of New Hampshire

Employer's Liability Exclusion Clearly and Unambiguously Applied to General Contractor's Indemnity Claims
Injury claim brought by subcontractor's employee against general contractor. General contractor sought indemnity for its liability from subcontractor, which carried a CGL policy with Merchants Mutual and did not carry workers' compensation insurance. Subcontractor sought coverage from Merchants Mutual for general contractor's indemnity claim. Merchants Mutual denied coverage and filed a declaratory judgment action against subcontractor and general contractor. After subcontractor failed to appear and was defaulted, Merchants Mutual and general contractor filed cross-motions for summary judgment. Trial court ruled that general contractor's indemnity claims were covered by the subcontractor's CGL policy, and granted summary judgment to general contractor. On appeal, Merchants Mutual argued that the trial court erred in ruling that the employer's liability exclusion did not apply to the general contractor's indemnity claims against the subcontractor and by holding that the employer's liability exclusion did not clearly and unambiguously apply to the general contractor's claims. Supreme Court held that trial court erred by not ruling that the exclusion clearly and unambiguously applied to the general contractor's indemnity claims, and concluded that the plain language of the employer's liability exclusion discharged Merchants Mutual from coverage of the general contractor's claims.

Submitted by: Gregory L. Cochran (McKenna Storer)

5/12/06 Walker v. Employers Insurance of Wausau
Indiana Court of Appeals

Policy Exclusion is Always a Policy Defense and Definition of Hit and Run Auto Includes Unidentified Vehicles that Cause Objects to Strike Other Vehicles
In Walker, plaintiff, a tractor trailer driver, in the course and scope of his employment, jack knifed when a pick-up truck cut in front of his rig, spraying gravel at the front of his rig. Plaintiff filed suit against defendant, his employer’s general liability insurer, claiming coverage for uninsured motorist benefits under the policy. Plaintiff served requests for admission on defendant, which defendant responded to six months later. Due to the untimely response, the requests were deemed admitted. Among the admissions were: (1) admit plaintiff has met contractual prerequisites for benefits under the uninsured motorist coverage; and (2) admit that none of the defenses listed in the policy apply to plaintiff’s claim. The trial court granted defendant’s motion for summary judgment, concluding that plaintiff’s claim was precluded by exclusions in the policy. On appeal, plaintiff argued that a policy defense and a policy exclusion were one in the same, such that defendant’s admission precluded it from being able to assert policy exclusions. The court found that while a policy defense is not always exclusion, policy exclusion is always a policy defense. Therefore, it held that defendant had admitted that none of the policy exclusions applied. Plaintiff further argued that he was entitled to benefits under the policy’s uninsured motorist provision because the accident was caused by a hit and run auto. Defendant argued that gravel, sprayed from another vehicle, was not sufficient for coverage under the provision. The court found that when an unidentified vehicle strikes an object, causing it to strike another vehicle, and there is a substantial nexus between the unidentified vehicle and the intermediate object, it may properly be considered a hit and run auto. Finding that the issue of proximate cause is not appropriately resolved by summary judgment, the court declined to affirm the trial court’s grant of summary judgment.

Submitted by: Bruce D. Celebrezze & Tara L. Riedley (Sedgwick, Detert, Moran & Arnold LLP

5/12/06 Hillibrand v. American Family Mutual Insurance Company

Supreme Court of Nebraska

No UIM Coverage Under Business Automobile Policies Where Business Owner Driving Personal Vehicle

Plaintiff was seriously injured in an automobile accident caused by the other driver while plaintiff was driving his personal vehicle on a service call for the heating and cooling business of which he was an owner, officer, director and employee. The other driver's insurance company paid the $25,000 limits of its liability policy, and the company insuring plaintiff's personal vehicle paid the $25,000 limits of UIM coverage on that vehicle. Plaintiff sued American Family to recover on UIM coverage on several vehicles owned by plaintiff's business which were insured by American Family with UIM limits of $100,000. American Family denied coverage, and both parties filed summary judgment motions on issue of whether the UIM coverage in business automobile policies covered injuries sustained by plaintiff while driving his personal vehicle on company business. The trial court concluded that the business automobile policies did not provide UIM coverage for plaintiff under the circumstances presented. The Supreme Court affirmed after finding a split among the jurisdictions but determining that the majority and better view is that defendant's policies provided no coverage.

Submitted by: Gregory Cochran (McKenna Storer)

5/12/06 Wilson v. Farm Bureau Mutual Insurance Company
Supreme Court of Iowa

Consent-To-Be-Bound Provision in UIM Policy Found Valid and Enforceable and Insurer Not in Bad Faith
Insured obtained jury verdict against underinsured motorist in underlying tort suit, which trial court reduced by percentage of fault attributed to insured. Following entry of judgment, trial court granted motion of insured to correct the judgment by increasing it to reflect the jury's determination on loss of consortium claims. Insured then sued its insurer to recover UIM benefits on the amended judgment, and joined a bad faith claim against the insurer for failure to pay insured's demand for UIM benefits. Trial court granted insured's summary judgment motion in part and denied it in part. In granting the motion, court ruled that a consent-to-be-bound provision under insured's UIM coverage was contrary to public policy and therefore unenforceable. In denying the motion, court allowed insurer to relitigate issue of damages in the underlying tort suit. Trial court granted insurer's motion for summary judgment on bad faith claim. On appeal, the Supreme Court concluded that the insurer was bound by the original judgment entry but not by the amended judgment. Supreme Court further concluded that insurer was not in bad faith in denying insured's demand and that the consent-to-be-bound provision was valid and enforceable.

Submitted by: Gregory L. Cochran (McKenna Storer)

5/10/06 Lawrence v. State Farm Fire and Casualty Company

Wyoming Supreme Court

Negligent Act of Giving Gas Money to Unlicensed Daughter for Operation of the Car Falls Under Motor Vehicle and Entrustment/Supervision Exclusions Such that There is No Duty to Defend
On appeal, plaintiff challenged the trial court’s grant of summary judgment in favor of defendant. Plaintiff claimed that defendant breached its insurance policy refusing to defend its insured against charges of negligence in an underlying action. The charges of negligence stemmed from a car accident, which occurred when a car owned by the insured, and driven by one of her daughter’s unlicensed friends, lost control and crashed into another car, killing its driver, plaintiff’s son. Prior to the accident, the insured had given her daughter, who was also unlicensed, money for gas so that she and her friends could use it. Plaintiff claimed that the insured’s act of giving her daughter gas money put defendant on notice that it was obligated to provide a defense. Further, plaintiff contended that the discrete act of providing the gas money could be separated out from the motor vehicle exclusion and the entrustment/supervision exclusion. Plaintiff’s theory was based on Wyoming law which requires all drivers to have a license and mandates that no person knowingly authorize a motor vehicle owned by him to be driven by a person without a proper license. The court rejected plaintiff’s argument, stating that the negligent act was not the provision of gas money alone, but the provision of gas money so that her daughter could drive the car. Thus, the court affirmed the summary judgment, finding that the negligent act was inextricably related to the operation of the car, and therefore fell within the policy’s exclusions for losses arising out of the use of a motor vehicle owned by the insured, and the entrustment/supervision by or of any insured to or of any person.

Submitted by: Bruce D. Celebrezze & Tara L. Riedley (Sedgwick, Detert, Moran & Arnold LLP)

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324 East 9th Street Corporation v Acordia Northeast-New York

Palmeri & Gaven, New York (John J. Palmeri of counsel), for
appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Peter J.
Biging of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 28, 2005, which, in an action by the corporate owner of an apartment building against an insurance broker for failure to procure liability insurance, granted defendant's motion to compel plaintiff's production of documents, unanimously affirmed, with costs.

Plaintiff asserts that its principal requested defendant to add it to an existing policy covering the principal's other properties that was obtained by the principal through defendant three months earlier, and that defendant assured the principal that plaintiff would be bound right away and added to the policy. Defendant asserts that while plaintiff's principal spoke to its employee about obtaining a price quote for insuring plaintiff, the principal never requested that plaintiff be added to the existing policy and that he actually believed that plaintiff was covered under a different policy placed with a different broker. We agree with defendant that documents bearing on the principal's practices with respect to obtaining insurance for his other buildings might be useful in resolving this issue of credibility (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]). For example, gaps in coverage for other buildings might indicate a pattern of remiss or inconsistent efforts in obtaining or maintaining coverage (cf. Bloom v Mutual of Omaha Ins. Co., 161 AD2d 1047, 1048 [1990]). Plaintiff's argument that the subject document demand is overbroad and unduly burdensome is improperly raised for the first time on appeal, and we decline to review it.

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

ENTERED: MAY 11, 2006

CLERK

Carter v. Full Service, Inc.

Russo, Keane & Toner, LLP, New York (Thomas F. Keane of
counsel), for appellants.
O'Dwyer & Bernstien, LLP, New York (Steven Aripotch of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about February 6, 2004, awarding plaintiff, after a jury trial, damages for a left-knee injury allegedly incurred in a motor vehicle accident that occurred on September 10, 1999, unanimously reversed, on the law, without costs, and defendants' motion for a directed verdict granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Plaintiff was involved in a motor vehicle accident on September 2, 1999. After this accident, the 34-year-old plaintiff was found lying on the ground outside his car, which (as plaintiff testified in another action) was destroyed. Plaintiff was taken by ambulance to a hospital emergency room, where x-rays were taken of his cervical spine, pelvis and knees. On September 9, 1999, plaintiff was examined by Dr. Elias Sedlin to determine the extent of the injuries he suffered in the September 2 accident. Dr. Sedlin's brief handwritten notation of the September 9 examination indicates that plaintiff complained of pain in his left knee at that time; specifically, plaintiff told Dr. Sedlin that he felt a "knot" in his left knee. Although Dr. Sedlin allegedly "couldn't find" the full, dictated version of his notes of the September 9 examination, Dr. Sedlin admitted that, based on the September 9 examination, he had diagnosed plaintiff as having sprained his left knee in the September 2 accident, and also as having osteoarthritis of the knee. Plaintiff, however, denied at trial that he experienced any pain in his left knee as a result of the September 2 accident.

On September 10, 1999, plaintiff was involved in a second motor vehicle accident — the one at issue in this action — while riding in the back seat of a livery cab owned by defendant Full Service, Inc. (FSI), and driven by defendant Jose Reyes. Plaintiff testified that he heard his left knee "pop" as his shoulder was thrown forward against the cab partition. Reyes, however, testified that plaintiff was holding his neck after the accident, but that he neither complained about his knee nor held it as if he felt pain there. The records of plaintiff's post-accident emergency room treatment on September 10 make no mention of any complaint regarding his knees.

Dr. Sedlin again examined plaintiff on September 13, 1999 to determine the injuries caused by the September 10 accident. Based on the September 13 examination, Dr. Sedlin wrote an office note of that date discussing plaintiff's complaints of neck and back pain, but making no [*2]mention of any complaint about the knee. A later version of the September 13 note, which Dr. Sedlin claimed to have prepared "[p]robably somewhere a month later or two months later," under circumstances he could not recall, was revised to include references to pain in plaintiff's left knee.

Plaintiff was subsequently diagnosed as having a torn anterior cruciate ligament (ACL) of the left knee, for which he underwent surgery in February 2000. That same month, plaintiff commenced this action against FSI and Reyes, seeking to recover for serious injury within the meaning of the No-Fault Law (Insurance Law § 5102[d]) that he allegedly suffered as the proximate result of the September 10 accident. As the case was presented to the jury, the sole injury at issue was the tear of the left-knee ACL. Dr. Sedlin, plaintiff's medical expert witness, testified that the September 10 accident was a substantial factor in causing that injury. Dr. Sedlin did not, however, provide any explanation of how he could distinguish the left-knee injury plaintiff allegedly presented after the September 10 accident from the knee injury caused by the September 2 accident that Dr. Sedlin admittedly had identified during the September 9 examination.

In order to recover damages for non-economic loss related to a personal injury allegedly sustained in a motor vehicle accident, a plaintiff is required to present competent, non-conclusory expert evidence sufficient to support a finding, not only that the alleged injury is "serious" within the meaning of Insurance Law § 5102(d), but also that the injury was proximately caused by the accident at issue (see Pommells v Perez, 4 NY3d 566, 574-575 [2005] [defendants were correctly granted summary judgment where the report of plaintiff's expert "left wholly unanswered the question of whether the claimed symptoms . . . were caused by the accident" or, alternatively, by a preexisting medical condition]; id. at 579-580 [same]; Agard v Bryant, 24 AD3d 182 [2005] [same]; Montgomery v Pena, 19 AD3d 288, 289-290 [2005] [defendants were entitled to summary judgment where plaintiff's expert failed to give an "objective basis" for the conclusion that plaintiff's alleged limitations resulted from the accident sued upon, rather than from a prior fall, a prior car accident, or certain preexisting degenerative conditions]). As we stated in Montgomery, in the absence of an explanation of the basis for concluding that the injury was caused by the subject accident, and not by other possible causes evidenced in the record, an expert's "conclusion that plaintiff's condition is causally related to the subject accident is mere speculation" insufficient to support a finding that such a causal link exists (19 AD3d at 290).

In this case, plaintiff's own evidence established that his left-knee injury may well have been caused not by the September 10 accident involving the instant defendants, but by the September 2 accident that took place eight days before. Nonetheless, Dr. Sedlin, plaintiff's medical expert, failed to explain how he concluded that the injury was caused by the second accident rather than the first. Plaintiff's own self-serving and conclusory testimony that he did not injure his knee until September 10, in addition to being incredible in view of its contradiction by his own expert and the emergency room records (which do not reflect any knee injury on September 10), was, in the absence of corroborating objective medical evidence, insufficient to raise a triable issue for submission to the jury (see Montgomery, 19 AD3d at 290; Nelson v Distant, 308 AD2d 338, 340 [2003]). In any event, defendants' medical expert, Dr. Harvey Levine, an orthopedic surgeon, testified that plaintiff's injury could not have been caused by the September 10 accident, since that accident (in which the cab in which plaintiff was riding rear-ended another car, without damage to either vehicle) did not generate sufficient force to cause such an injury — another point not addressed by plaintiff's evidence. Accordingly, plaintiff failed [*3]to sustain his burden of proving "a serious injury causally related to the accident" (Pommells, 4 NY3d at 579 [emphasis added]), and defendants were entitled to judgment as a matter of law.

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

Bernard v. Mumuni

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the opinion by Justice David Friedman at the Appellate Division (22 AD3d 186). Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur. Judge R.S. Smith dissents and votes to reverse for the reasons stated in the dissenting opinion by Justice John W. Sweeny at the Appellate Division (22 AD3d 186, at 191-193).

And here is the First Department Decision:

First Department, August 18, 2005

APPEARANCES OF COUNSEL

Kelly, Rode & Kelly, LLP, Mineola (Eric B. Betron of counsel), for appellant.

Gersowitz, Libo & Korek, P.C., New York City (Andrew L. Libo and Jeff S. Korek of counsel), for Kevin Bernard and others, respondents.

Martin, Fallon & Mullé, Huntington (Larry M. Shaw of counsel), [*2]for Saday Allhassan, respondent.

OPINION OF THE COURT

Friedman, J.

Plaintiff was injured in an accident involving a minivan owned by defendant Musah Mumuni. Prior to the accident, Mumuni had entrusted the minivan to his friend Osmanu Allhassan; at the time of the accident, the vehicle was being driven by Osmanu Allhassan's son, defendant Saday Allhassan, who did not hold a valid driver's license. As more fully discussed below, prior decisions that have applied Vehicle and Traffic Law § 388 in similar situations establish that the evidence in this case raises an issue of fact as to whether Saday Allhassan operated the minivan with Mumuni's implied consent. Accordingly, Mumuni's motion for summary judgment was properly denied.

Given his undisputed ownership of the vehicle, Mumuni is required to come forward with substantial evidence to rebut the strong presumption that Saday Allhassan drove the minivan with Mumuni's consent (see Murdza v Zimmerman, 99 NY2d 375, 380 [2003]). While there may be some uncertainty in the law as to whether the presumption of the owner's consent, by itself, suffices to raise an issue of fact as to consent where the owner's evidence rebutting the presumption is uncontradicted (see Country Wide Ins. Co. v National R.R. Passenger Corp., 407 F3d 84 [2d Cir 2005] [certifying questions to the New York Court of Appeals]; Country Wide Ins. Co. v National R.R. Passenger Corp., 5 NY3d 728 [2005] [accepting such certified questions]), that issue need not detain us here. In this case, the record contains evidence from which a trier of fact could reasonably infer that Saday Allhassan had Mumuni's implied consent to drive the minivan.

To begin, there is a stark disagreement between Mumuni and Osmanu Allhassan as to the directions, if any, Mumuni gave Osmanu Allhassan about the use of the minivan upon entrusting it to him. Mumuni has testified that he specifically instructed Osmanu Allhassan not to drive the vehicle while it was entrusted to him. Osmanu Allhassan, however, has stated under oath: "Mr. Mumuni never advised me not to operate the subject vehicle. He gave me no instructions with respect to the use thereof." Plainly, Osmanu Allhassan's testimony that Mumuni entrusted the minivan to him without imposing any restrictions on its use raises an issue of fact as to whether Mumuni gave his implied consent to Osmanu Allhassan's operation of the minivan (see Tabares v Colin Serv. Sys., Inc., 197 AD2d 571, 572 [1993] [issue of fact as to permissive use arose from conflicting testimony concerning what restrictions, if any, employer placed on employee's use of a company vehicle]). True, Mumuni may argue at trial that his purpose in entrusting the minivan to Osmanu Allhassan (to allow the vehicle to be transferred to a new owner while he was out of the country) weighs against a finding of implied consent. That purpose, however, cannot be said to negate implied consent as a matter of law.

Of course, in order to prevail against Mumuni, plaintiff must prove not only that Mumuni implicitly consented to Osmanu Allhassan's use of the minivan, but also that such implicit consent extended to Saday Allhassan. The record contains sufficient evidence to support such a finding. In the event the trier of fact credits Osmanu Allhassan's testimony that Mumuni did not impose any restrictions on use of the minivan during the entrustment, Mumuni's implied consent to use of the vehicle could reasonably be found to extend to any person Osmanu Allhassan [*3]permitted to drive the minivan, either expressly or impliedly. It is well established that, when the owner of a vehicle places it under the unrestricted control of a second person, the owner's consent to use of the vehicle may reasonably be found to extend to a third person whom the second person permits to drive it (see May v Heiney, 12 NY2d 683 [1962]; Jackson v Brown & Kleinhenz, Inc., 273 NY 365, 369 [1937]; Tabares v Colin Serv. Sys., 197 AD2d 571, supra; Schrader v Carney, 180 AD2d 200, 210 [1992]; Lovetere v Stackhouse, 25 AD2d 628 [1966]; Comstock v Beeman, 24 AD2d 931 [1965], affd 18 NY2d 772 [1966]; Brindley v Krizsan, 18 AD2d 971 [1963], affd 13 NY2d 976 [1963]; Clarke v Mason Au & Magenheimer Confectionery Mfg. Co., 240 App Div 1001 [1933], affd 264 NY 661 [1934]). As the Court of Appeals stated in one of the cases cited above: "[The owner,] having thus relinquished its immediate control over the automobile and having vested the control in another [Brown & Kleinhenz, Inc.] without limitation of authority, must not now be heard to question the finding that the consent given by Brown & Kleinhenz, Inc., to [the driver] was impliedly its [the owner's] consent" (Jackson v Brown & Kleinhenz, Inc., 273 NY at 369).^[FN*]

While there is no evidence that Osmanu Allhassan gave Saday Allhassan express permission to use the minivan, the record does contain sufficient evidence to give rise to an inference of implied permission. Specifically, Osmanu Allhassan left the keys to the minivan on a table in his house, where Saday Allhassan found them on the day of the accident. Saday Allhassan, who was unaware of Mumuni's entrustment of the minivan to his father, assumed the keys belonged to the vehicle his father had said he would purchase for him. He therefore took the keys, located the minivan, and drove it on a personal errand, during which the subject accident occurred. In our view, a trier of fact could reasonably infer from the totality of these circumstances—the fact that Osmanu Allhassan and Saday Allhassan, a father and son, were members of the same household; the availability of the keys on a table in the house; and Saday Allhassan's knowledge that his father intended to give him a car—that Saday Allhassan reasonably believed that he had his father's permission to drive the minivan (see Matter of Travelers Prop. Cas. Corp. v Maxwill-Singleton, 300 AD2d 225, 226 [2002] [evidence that owner of a car parked it behind his shop and left the keys with his employee was sufficient to support a finding that employee drove the car with owner's consent, notwithstanding owner's testimony that he never gave anyone permission to drive the car]).

The dissent and Mumuni, in propounding their view that the trier of fact could not reasonably infer implicit consent by Mumuni to Saday Allhassan's use of the minivan, rely heavily on the fact that Saday Allhassan did not hold a driver's license, but only a learner's [*4]permit, at the relevant time. The argument seems to be that an owner who entrusts his or her vehicle to a friend, even if the owner does so without articulating any restrictions on the vehicle's use, should not be deemed to consent to the friend's allowing an unlicensed person to drive the vehicle. The short answer to this argument is that it has already been rejected by the Court of Appeals. In Brindley v Krizsan (supra), the Court of Appeals affirmed (13 NY2d 976) this Court's affirmance (18 AD2d 971) of a judgment against a car owner, notwithstanding that the unlicensed driver had been given control of the car, not by the owner himself, but by an intermediary to whom the owner had entrusted the car. In affirming the judgment, we explained (18 AD2d at 972):

"Here, there is support for the finding of the trial court that the owner vested his friend Zsombok with general control of the car without limitation of authority. Under these circumstances, a driver to whom Zsombok loaned the car was properly found to be driving it with the implied consent of the owner, and the fact that such driver was unlicensed does not affect the statutory responsibility of the owner." (Emphasis added and citations omitted.)

The result in Brindley is readily explained as required by the policy animating Vehicle and Traffic Law § 388, namely, "that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant" (Murdza v Zimmerman, 99 NY2d at 379, quoting Continental Auto Lease Corp. v Campbell, 19 NY2d 350, 352 [1967]). Where the owner of a vehicle entrusts it to another person without setting forth any express restrictions as to the vehicle's use, and the person entrusted with the vehicle permits an unlicensed third person to drive it, the financial burden of an accident caused by the unlicensed driver's negligence should fall on the owner, who put in motion the chain of events leading to the accident. That burden should not fall on an innocent stranger, such as plaintiff in this action, who happens to be injured in the accident. In order to give full effect to the policy of Vehicle and Traffic Law § 388, the driver's lack of a license should not preclude a finding that he or she operated the vehicle with the owner's implied consent (see Carter v Travelers Ins. Co., 113 AD2d 178, 181-182 [1985] [to effectuate the policy of section 388, owner who left his car at an attended parking lot was deemed to have consented to the operation of the car by an unlicensed parking lot attendant]).

The dissent attempts to distinguish Brindley from the instant case on the ground that the driver in Brindley "had the express permission of the person to whom the car had been entrusted." The dissent overlooks the fact that Vehicle and Traffic Law § 388 provides that permission giving rise to liability under the statute may be either "express or implied." As previously discussed, while it is undisputed that Saday Allhassan did not have his father's express permission to drive the minivan, the facts appearing in the record raise an issue of fact as to whether the son had the father's implied permission to use the vehicle. Contrary to the dissent's assertion, nowhere in Osmanu Allhassan's affidavit does he "concede[ ] that he did not give permission, express or implied, to his son to operate the vehicle." To the contrary, the father's affidavit is not only consistent with a finding of implied permission, it sets forth [*5]sufficient facts to support such a finding. And, under the authorities previously cited, the father's implied permission, if found by the trier of fact, is imputable to Mumuni, the owner, to the extent the trier of fact credits the father's testimony that Mumuni entrusted the vehicle to him without providing any instructions as to its use. Thus, the present record contains sufficient evidence to support imposing statutory liability on Mumuni.

Ultimately, the dissent's position that plaintiff has no cause of action against Mumuni—notwithstanding the evidence plainly supporting a finding that Mumuni gave unfettered control of the minivan to Osmanu Allhassan—rests on the claim that "a connection" between Osmanu Allhassan and his son, Saday Allhassan, is somehow "lack[ing]." In making this assertion, the dissent disregards the aforementioned facts appearing in the record that give rise to a fair inference that the father gave his implied consent to the son's use of the vehicle. Whether such an inference should be drawn is a question for the trier of fact, not for this Court. We therefore affirm the order denying Mumuni's motion for summary judgment.

Accordingly, the order of the Supreme Court, Bronx County (Janice L. Bowman, J.), entered December 24, 2003, which denied Mumuni's motion for summary judgment dismissing the complaint and all cross claims as against him, should be affirmed, without costs.

Sweeny, J. (dissenting). Mumuni's motion for summary judgment should have been granted. There is no proof that Saday Allhassan drove Mumuni's car with his express or implied permission.

This is a personal injury action where plaintiff was a passenger in a car involved in an accident with a minivan owned by defendant Mumuni and operated by defendant Saday Allhassan.

Mumuni had arranged to sell his minivan but was going to be out of the country before the sale was completed. On or before February 19, 2002, he left the minivan and the signed title with his friend, Osmanu Allhassan, who was to turn the vehicle and title over to the purchaser and collect the money for Mumuni.

On March 2, 2002, Allhassan's son, Saday, who was living at college, came home to do some errands. There was no one at home and, letting himself in, he saw the minivan keys on a table. Saday testified at his deposition that he did not know who owned the minivan and no one had given him permission to drive it, that his father owned no vehicle except for a taxi cab he used for business and had never let him use any vehicle in the past, and that he presumed the minivan was his because his father had previously told him that he would buy him a car. However, Saday conceded that his father never actually told him that the minivan was his and in fact never told him that he had purchased a car for him. Furthermore, Saday had not even spoken to his father for two weeks preceding the accident. Based on this testimony, it appears that Saday never received permission from his father to use the vehicle. Rather, on his own, he took the [*6]keys and drove off. And if Saday did not have permission from his father, he would not have had it from Mumuni.

It is well settled that Vehicle and Traffic Law § 388 creates a strong presumption that the use of a vehicle is with the permission of the owner and that this presumption is rebuttable only by substantial evidence to the contrary (Leotta v Plessinger, 8 NY2d 449, 461 [1960]; Blunt v Zinni, 32 AD2d 882 [1969], affd 27 NY2d 521 [1970]). Substantial evidence was presented here. No one claims that Mumuni gave Saday express permission to drive the van. As for implied permission, plaintiff argues that although Osmanu Allhassan understood that Mumuni gave him the van for the purpose of transferring it to the new owner, Mumuni did not impose any restrictions on its use. Such circumstances do not tend to show Mumuni's implied permission for Saday to drive the van when Saday only had a learner's permit, not a valid New York State driver's license, and there is no evidence that Mumuni ever impliedly gave permission for an unlicensed operator to drive his van.

The majority places great reliance on Brindley v Krizsan (18 AD2d 971 [1963], affd 13 NY2d 976 [1963]) for the proposition that liability can attach even where the operator was unlicensed. However, the majority's reliance is belied by the fact that the operator of the vehicle in Brindley had the express permission of the person to whom the car had been entrusted.^[FN*] In this case, even Osmanu Allhassan concedes that he did not give permission, express or implied, to his son to operate the vehicle. In his affidavit, Osmanu avers that his son mistakenly thought the keys on the table were to the vehicle he had discussed purchasing. This lack of a connection between Saday and his father is fatal to plaintiff's case.

"[A] finding of constructive consent and its attendant liability under section 388 requires a consensual link between the negligent operator and one whose possession of the vehicle is authorized. Otherwise, implied consent under section 388 (1) would amount to strict liability—a result clearly at odds with the section and its purposes" (Murdza v Zimmerman, 99 NY2d 375, 381 [2003]).

Notwithstanding the laudatory intent of Vehicle and Traffic Law § 388 (1), the facts must support the liability. Mumuni adduced substantial evidence that Saday Allhassan operated the minivan without his permission, express or implied, and plaintiff failed to adduce any facts tending to show the contrary, other than Osmanu's disputed testimony that Mumuni entrusted the van to him without any express restrictions on its use. Such testimony, if credited, is insufficient [*7]to raise an issue of fact as to whether Mumuni impliedly agreed to permit Osmanu's unlicensed family member to operate the van. Therefore, Mumuni's motion for summary judgment should have been granted and the complaint dismissed as against Mumuni.

Saxe and Nardelli, JJ., concur with Friedman, J.; Tom, J.P., and Sweeny, J., dissent in a separate opinion by Sweeny, J.

Order, Supreme Court, Bronx County, entered December 24, 2003, affirmed, without costs.

Footnotes

Footnote *: The dissent's efforts to distinguish certain of the above-cited cases from the instant case are misplaced, since the cases are not cited on the premise that each is factually identical to the instant case. Rather, we cite the cases as illustrations of the general principle under which Mumuni's implied consent to Osmanu Allhassan's operation of the minivan (if found to have been given) may be found to extend to Saday Allhassan.

Footnote *: It should be noted that each of the other cases cited by the majority is distinguished by crucial facts glaringly absent in our case, e.g., permission given on previous occasions (Comstock v Beeman, 24 AD2d 931 [1965], affd 18 NY2d 772 [1966]); evidence of express permission given to driver (Schrader v Carney, 180 A

Morejon v. Rais Construction Company


Philip J. Hoffman, for appellant.
Erika C. Aljens, for respondents.
Defense Association of New York, Inc., amicus curiae.


ROSENBLATT, J.:

In a personal injury or property damage case, it is plaintiff's burden to prove [*2]defendant negligent. Occasionally, however, a plaintiff to whom the defendant owes a duty of care is not in a position to prove directly what actually happened or that a specific act of the defendant was negligent. In a proper case, under the doctrine of res ipsa loquitur, the law allows a jury to consider the circumstantial evidence and infer that the defendant was negligent in some unspecified way. (See generally Kambat v St. Francis Hosp., 89 NY2d 489 [1997].)^[FN1]

On this appeal, we address defendants' assertion—supported by the Appellate Division—that circumstantial evidence (res ipsa) may never justify summary judgment for the plaintiff. We conclude that, while there is no rule or policy absolutely foreclosing that possibility, it should be a rare event. Here, open questions of fact remain.

I.

Plaintiff, on behalf of the estate of Fabio Pardo, sued defendant Rais Construction Company, alleging that Pardo was fatally injured while delivering building materials to Rais Construction for a job it was doing at the residence owned by Barry and Susan Kleinman in Nassau County.^[FN2]

At their depositions, Alejandro and Maria Pardo (Fabio's brother and sister-in-law) testified that Rais had engaged Fabio to pick up boxes from a hardware store and deliver them to the Kleinman house the morning of December 26, 1998, a Saturday. They claimed that they accompanied Fabio to the site, where a roll of roofing material fell from the roof and hit him on the head. They testified that a man at the house at one point opened the door but neither Maria nor Alejandro could identify him, nor did they tell him that there had been an accident. Further, Maria acknowledged that Fabio did not seek any medical treatment for the injury until the end of February, 1999. In his deposition, Cesar Rais testified that he never left roofing materials on the Kleinmans' roof, implying that none were there on December 26. Rais also testified that his crew stopped work at the site three days before the incident. Barry Kleinman supported Rais's assertions.

Rais further stated that he did not engage Fabio to do any work on the day in [*3]question or even during the previous several weeks, having let him go weeks before out of concern that Fabio's extreme headaches were posing a safety problem for Fabio and others. Rais added that it was not until April of 1999 that he was told about the alleged accident. Barry Kleinman testified that he was at the house the afternoon of December 26, 1998 and saw no evidence of work being done. He said it had snowed the day before and there were no tracks or disturbances in the fresh snow.

In resisting plaintiff's motion for summary judgment, defendants argued that there were disputed questions of fact, including whether the accident even had occurred. Supreme Court initially denied the motion but on reargument granted plaintiff summary judgment against the Rais defendants on the basis of res ipsa loquitur. The Appellate Division reversed, stating that res ipsa loquitur "may not be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability" (18 AD3d 632, 633 [2d Dept 2005]). Because there are questions of fact precluding summary judgment for the plaintiff, we affirm. We disagree, however, with the Appellate Division's statement that res ipsa loquitur may never serve as a basis for granting a plaintiff summary judgment.

II.

In addressing the procedural role of res ipsa loquitur, it is useful to examine the development of the doctrine itself. This Court used the term "res ipsa loquitur" for the first time in Mullen v St. John (57 NY 567 [1874]), in which a part of a building fell on the plaintiff. "Buildings properly constructed do not fall without adequate cause," we said.

"If there be no tempest prevailing or no external violence of any kind, the fair presumption is, that the fall occurred through adequate causes, such as the ruinous condition of the building, which could scarcely have escaped the observation of the owner. The mind is thus led to a presumption of negligence on his part, which may, of course, be rebutted. In the absence of explanatory evidence, negligence may be presumed."

(57 NY at 569-570.)^[FN3]

Citing an English case (Kearney v London, Brighton & South Coast R.R. Co., [*4]L.R. [5 Q.B.] 411 [1870]), the Court expressly espoused the doctrine of res ipsa loquitur,^[FN4] and upheld the judgment for plaintiff based on the jury's verdict. After Mullen, and for about 30 years, we heard a number of res ipsa loquitur cases in which the Court was almost uniformly inhospitable to the plaintiffs or the doctrine ^[FN5]. Slowly thereafter, res ipsa loquitur gained general acceptance with us,^[FN6] but there was some confusion over the doctrine's procedural effects. Courts, [*5]including ours, used "prima facie case," "presumption of negligence" and "inference of negligence" interchangeably even though the phrases can carry different procedural consequences. One case went so far as to use all three interchangeably.^[FN7]

In George Foltis, Inc. v City of New York (287 NY 108 [1941]), a pivotal case, we reversed the grant of a directed verdict for the plaintiff. The Court emphasized that when dealing with res ipsa loquitur, the indiscriminate use of the terms "presumption" and "inference" caused confusion. The Court held that res ipsa loquitur does not create a presumption of negligence against the defendant. Rather, the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent. The Court went on to state that res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is unrefuted.

We stand by those principles, and in the context of this appeal, reaffirm that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable.

Drawing on a number of cases that had fashioned the criteria for res ipsa loquitur, and relying on Prosser, the Court listed these criteria in Corcoran v Banner Super Market (19 NY2d 425 [1967]):

"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (19 NY2d at 430, quoting Prosser, Torts, § 39 at 218 [3d ed].)

Our more recent decisions have generally followed this formulation (see e.g. States v Lourdes [*6]Hosp., 100 NY2d 208 [2003]; Kambat v St. Francis Hosp., 98 NY2d 489 [1997]), and this case gives us no reason to change it. We have not, however, discussed the summary judgment or directed verdict aspects of the doctrine in the 65 years since Foltis. Over the last century, the Appellate Division has held barely more than a dozen times that a plaintiff is entitled to summary judgment or a directed verdict in res ipsa loquitur cases ^[FN8]. An approach that sparing is consistent with Foltis, and in accord with the treatise commentators.^[FN9]

Since Foltis, our courts have grown more sensitive to the differences between inferences and presumptions, recognizing that terminology can carry varying procedural implications ^[FN10]. But the line is sometimes blurry, and on occasion, courts have still referred to res [*7]ipsa loquitur as creating a presumption, as opposed to an inference, of negligence ^[FN11]. Indeed, Wigmore has characterized res ipsa loquitur as raising a presumption of negligence, as have a number of courts in other jurisdictions ^[FN12]. The difficulty in applying a presumption or an inference has generated some criticism in an analogous setting (see Allen, Presumptions, Inferences, and Burden of Proof in Federal Civil Actions An Anatomy of Unnecessary Ambiguity and a Proposal for Reform, 76 Nw U L Rev 892 [1982]) and one author has listed eight ways in which courts have used the term "presumption."^[FN13] [*8]

In our own taxonomy in other contexts, we speak of "presumptions of law" (Buccini v Paterno Const. Co., 253 NY 256, 259 [1930]), "presumptions of fact" (Myers v Bartholomew, 91 NY2d 630, 636 [1998]), "conclusive presumption[s]" (Cornell Univ. v Bagnardi, 68 NY2d 583, 594-95 [1986]), "rebuttable presumption[s]" (Williams v City of New York, 2 NY3d 352, 366 [2004]), "conflicting presumptions" (Palmer v Palmer, 162 NY 130, 133 [1900]) and "statutory presumption[s]" (DeJesus v DeJesus, 90 NY2d 643, 652 [1997]). Perhaps even more unsettling, we also hear of "mandatory inference[s]" (West v Nabors Drilling USA, Inc, 330 F3d 379 [5th Cir 2003]), "presumptive inference[s]" (Hines v New York City Housing Auth., 67 AD2d 1000, 1001 [2d Dept 1979]) and "permissive presumption[s]" (County Court v Allen, 442 US 140, 157 [1979]). In United States v Gainey (380 US 63, 78 [1965]), Justice Black stated that "in its simplest form a presumption is an inference permitted or required by law. . . ."

In most of the post-Foltis res ipsa loquitur cases cited, the courts would likely have reached the same result whether by way of inference or presumption or some other word or phrase. We adhere, nevertheless, to our jurisprudence, in which we denominate res ipsa loquitur as creating an inference (as defined in this writing and our case law [e.g. Kambat, supra]).

The dizzying array of formulations (from mandatory inferences to permissive presumptions), however, suggests that things would be far less complicated if we viewed the res ipsa loquitur/summary judgment issue without undue emphasis on labels and pigeon holes. Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence ^[FN14]. Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant's liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination. This is not such a case. Here, there are material questions of fact for trial.

Accordingly, the order of the Appellate Division should be affirmed, with costs, [*9]and the certified question answered in the affirmative.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs, and certified question answered in the affirmative. Opinion by Judge Rosenblatt. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith
concur.
Decided May 9, 2006

Footnotes

Footnote 1: See also Dermatossian v New York City Tr. Auth. (67 NY2d 219, 226 [1986]); Restatement (Third) of Torts § 17 (Tentative Draft No. 1, March 28, 2001); Prosser & Keeton, Torts, at 258 (5th ed 1984); Dobbs, Torts, at 370 (2001); PJI3d 2:65 (2006).

Footnote 2: The motion court dismissed the complaint against the Kleinmans, who are not involved in this appeal, leaving defendants Rais Construction Company, and its principals Cesar Rais and Nora Sanchez (the Rais defendants).

Footnote 3: Note that the Court spoke of a "presumption of negligence." More about this later.

Footnote 4: In Russell Mfg. Co. v New Haven Steamboat Co. (50 NY 121 [1872]), decided two years before Mullen, the Court reached a similar result without using the term "res ipsa loquitur," concluding that the trial court erred in directing a verdict for the defendant. For an English case even earlier than Kearney, see Byrne v Boadle (2 H & C 722, 159 Eng Rep 299 [1863]), perhaps the first of the genre.

Footnote 5: Wiedmer v New York E.R. Co. (114 NY 462 [1889]); Cosulich v St. Oil Co. (122 NY 118 [1890]); Flinn v N.Y.C. & H.R. R.R. Co. (142 NY 11 [1894]); Loudoun v Eighth Ave. R.R. Co. (162 NY 380 [1900]); Kay v Metropolitan St. R.R. Co. (163 NY 447 [1900]); Wolf v Am. Tract Soc. (164 NY 30 [1900]); Griffen v Manice (166 NY 188 [1901]); Welsh v Cornell (168 NY 508 [1901]); Crowley v Rochester Fireworks Co. (183 NY 353 [1906]); Duhme v Hamburg-Am. Packet Co. (184 NY 404 [1906]); Cunningham v Dady (191 NY 152 [1908]); Robinson v Consol. Gas Co. (194 NY 37 [1909]); Henson v Lehigh Valley R.R. Co. (194 NY 205 [1909]); Ferrick v Eidlitz (195 NY 248 [1909]); Eaton v N.Y. Cent. & H.R. R.R. Co. (195 NY 267 [1909]); Conyes v Oceanic Amusement Co. (202 NY 408 [1911]); Hardie v Boland Co. (205 NY 336 [1912]). In Hogan v Manhattan Ry. Co. (149 NY 23 [1896]), the Court affirmed a judgment, based on a jury verdict, for a plaintiff who was hit by an iron bar that fell from an elevated railway, but did not use the phrase "res ipsa loquitur." Rosenstein v Vogemann (184 NY 325 [1906]) may also qualify as an exception to the Court's seeming resistance to res ipsa loquitur during that era.

Footnote 6: See e.g. Newell v Brooklyn Bus Corp. (280 NY 650 [1939]) (affirming verdict for plaintiff with no opinion); Bressler v N.Y. Rapid Transit Corp. (277 NY 200 [1938]); Lessig v N.Y.C. R.R. (271 NY 250 [1936]); Tortora v State (269 NY 167 [1935]); Solko v Hay Foundry & Iron Works, Inc. (245 NY 554 [1927]) (affirming verdict in favor of the plaintiff without opinion); Pierson v Interborough Rapid Transit Co. (227 NY 666 [1920]) (affirming verdict in favor of the plaintiff without opinion).

Footnote 7: Plumb v Richmond Light & R. R. Co., 233 NY 285 (1922). A contemporary law review article described the confusion that arises from the failure to use the three terms distinctively (Rosenthal, Procedural Effects of Res Ipsa Loquitur in New York, 22 Cornell L Rev 39 [1936]).

Footnote 8:See Thomas v N.Y. Univ. Med. Ctr., 283 AD2d 316 (1st Dept 2001); Salter v Deaconess Family Med. Ctr., 267 AD2d 976 (4th Dept 1999); Harmon v U.S. Shoe Corp., 262 AD2d 1010 (4th Dept 1999); O'Connor v 72 St. East Corp., 224 AD2d 246 (1st Dept 1996); Smith v Moore, 227 AD2d 854 (3d Dept 1996); Dillenberger v 74 Fifth Ave. Owners Corp., 155 AD2d 327 (1st Dept 1989); Farina v Pan Am. World Airlines, Inc., 116 AD2d 618 (2d Dept 1986); Cebula v Bonime, 92 AD2d 856 (2d Dept 1983); Lippman v State, 83 AD2d 700 (3d Dept 1981); Notice v Regent Hotel Corp., 76 AD2d 820 (1st Dept 1980); Horowitz v Kevah Konner, Inc., 67 AD2d 38 (1st Dept 1979); Derrell v Nassau County Med. Ctr., 73 AD2d 682 (2d Dept 1979); Richard Equipment Corp. v Manhattan Indus. Contracting Co., 9 AD2d 691 (2d Dept 1959). See also Restatement (Third) of Torts, § 17, supra, at Comment j ("[O]n some occasions, the force of circumstantial evidence can be such as to call for a directed verdict for the plaintiff").

Footnote 9:See Prosser & Keeton, Torts, at 258 (5th ed 1984); Restatement (Third) of Torts § 17 at 12 (Tentative Draft No. 1, March 28, 2001). See generally Glenn, Res Ipsa Loquitur as Ground for Direction of Verdict in Favor of Plaintiff, 97 ALR2d 522 (1964).

Footnote 10:See generally Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn L Rev 241 (1936).

Footnote 11:See e.g. Rountree v Manhattan & Bronx Surface Transit Operating Auth., 261 AD2d 324 (1st Dept 1999); Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068 (4th Dept 1999); Stanski v Ezersky, 228 AD2d 311 (1st Dept 1996).

Footnote 12:See 9 Wigmore, Evidence [3d ed], § 2508, at 375, and § 2509. See e.g. Cox v Paul, 828 NE2d 907, 912 (Ind 2005) ("Res ipsa loquitor, in some circumstances, merely permits the trier of fact to infer negligence. In others, it may function 'as a rule of policy which goes beyond the probative effect of circumstantial evidence, and requires the defendant to explain the event of circumstantial evidence or be liable.' If so, res ipsa loquitor may be 'given a greater procedural effect' by shifting the burden of proof to the defendant or creating a presumption of negligence" [citations omitted]); Woodard v Custer, 702 NW2d 522, 525 n2 (Mich 2005) ("'Res ipsa loquitur' is the 'rebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence'" [citations omitted]); Palmer v Clarksdale Hosp., 40 So 2d 582, 586 (Miss 1949) ("the doctrine of res ipsa loquitur does not in any instance create a case of absolute liability, but simply raises a presumption or makes out a prima facie case of negligence to the extent that the defendant is called upon to meet it with an explanation").

Footnote 13:See 2 McCormick, Evidence, § 342 at 433 (5th ed 1999), citing Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich L Rev 195, 196-207 (1953).

Footnote 14:See Grady, Res Ipsa Loquitur and Compliance Error, 142 U Pa L Rev 887, 913 (1994) ("The traditional consensus is that the doctrine, though a substantive one of tort, applies to cases in which the plaintiff possesses only circumstantial evidence that the defendant's negligence caused her injury").
D2d 200 [1992]). ided May 9, 2006

324 East 9th Street Corporation v. Acordia Northeast-New York

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 28, 2005, which, in an action by the corporate owner of an apartment building against an insurance broker for failure to procure liability insurance, granted defendant's motion to compel plaintiff's production of documents, unanimously affirmed, with costs.

Plaintiff asserts that its principal requested defendant to add it to an existing policy covering the principal's other properties that was obtained by the principal through defendant three months earlier, and that defendant assured the principal that plaintiff would be bound right away and added to the policy. Defendant asserts that while plaintiff's principal spoke to its employee about obtaining a price quote for insuring plaintiff, the principal never requested that plaintiff be added to the existing policy and that he actually believed that plaintiff was covered under a different policy placed with a different broker. We agree with defendant that documents bearing on the principal's practices with respect to obtaining insurance for his other buildings might be useful in resolving this issue of credibility (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]). For example, gaps in coverage for other buildings might indicate a pattern of remiss or inconsistent efforts in obtaining or maintaining coverage (cf. Bloom v Mutual of Omaha Ins. Co., 161 AD2d 1047, 1048 [1990]). Plaintiff's argument that the subject document demand is overbroad and unduly burdensome is improperly raised for the first time on appeal, and we decline to review it.

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

ENTERED: MAY 11, 2006

CLERK

Carter v.Full Service, Inc.

Russo, Keane & Toner, LLP, New York (Thomas F. Keane of
counsel), for appellants.
O'Dwyer & Bernstien, LLP, New York (Steven Aripotch of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about February 6, 2004, awarding plaintiff, after a jury trial, damages for a left-knee injury allegedly incurred in a motor vehicle accident that occurred on September 10, 1999, unanimously reversed, on the law, without costs, and defendants' motion for a directed verdict granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Plaintiff was involved in a motor vehicle accident on September 2, 1999. After this accident, the 34-year-old plaintiff was found lying on the ground outside his car, which (as plaintiff testified in another action) was destroyed. Plaintiff was taken by ambulance to a hospital emergency room, where x-rays were taken of his cervical spine, pelvis and knees. On September 9, 1999, plaintiff was examined by Dr. Elias Sedlin to determine the extent of the injuries he suffered in the September 2 accident. Dr. Sedlin's brief handwritten notation of the September 9 examination indicates that plaintiff complained of pain in his left knee at that time; specifically, plaintiff told Dr. Sedlin that he felt a "knot" in his left knee. Although Dr. Sedlin allegedly "couldn't find" the full, dictated version of his notes of the September 9 examination, Dr. Sedlin admitted that, based on the September 9 examination, he had diagnosed plaintiff as having sprained his left knee in the September 2 accident, and also as having osteoarthritis of the knee. Plaintiff, however, denied at trial that he experienced any pain in his left knee as a result of the September 2 accident.

On September 10, 1999, plaintiff was involved in a second motor vehicle accident — the one at issue in this action — while riding in the back seat of a livery cab owned by defendant Full Service, Inc. (FSI), and driven by defendant Jose Reyes. Plaintiff testified that he heard his left knee "pop" as his shoulder was thrown forward against the cab partition. Reyes, however, testified that plaintiff was holding his neck after the accident, but that he neither complained about his knee nor held it as if he felt pain there. The records of plaintiff's post-accident emergency room treatment on September 10 make no mention of any complaint regarding his knees.

Dr. Sedlin again examined plaintiff on September 13, 1999 to determine the injuries caused by the September 10 accident. Based on the September 13 examination, Dr. Sedlin wrote an office note of that date discussing plaintiff's complaints of neck and back pain, but making no [*2]mention of any complaint about the knee. A later version of the September 13 note, which Dr. Sedlin claimed to have prepared "[p]robably somewhere a month later or two months later," under circumstances he could not recall, was revised to include references to pain in plaintiff's left knee.

Plaintiff was subsequently diagnosed as having a torn anterior cruciate ligament (ACL) of the left knee, for which he underwent surgery in February 2000. That same month, plaintiff commenced this action against FSI and Reyes, seeking to recover for serious injury within the meaning of the No-Fault Law (Insurance Law § 5102[d]) that he allegedly suffered as the proximate result of the September 10 accident. As the case was presented to the jury, the sole injury at issue was the tear of the left-knee ACL. Dr. Sedlin, plaintiff's medical expert witness, testified that the September 10 accident was a substantial factor in causing that injury. Dr. Sedlin did not, however, provide any explanation of how he could distinguish the left-knee injury plaintiff allegedly presented after the September 10 accident from the knee injury caused by the September 2 accident that Dr. Sedlin admittedly had identified during the September 9 examination.

In order to recover damages for non-economic loss related to a personal injury allegedly sustained in a motor vehicle accident, a plaintiff is required to present competent, non-conclusory expert evidence sufficient to support a finding, not only that the alleged injury is "serious" within the meaning of Insurance Law § 5102(d), but also that the injury was proximately caused by the accident at issue (see Pommells v Perez, 4 NY3d 566, 574-575 [2005] [defendants were correctly granted summary judgment where the report of plaintiff's expert "left wholly unanswered the question of whether the claimed symptoms . . . were caused by the accident" or, alternatively, by a preexisting medical condition]; id. at 579-580 [same]; Agard v Bryant, 24 AD3d 182 [2005] [same]; Montgomery v Pena, 19 AD3d 288, 289-290 [2005] [defendants were entitled to summary judgment where plaintiff's expert failed to give an "objective basis" for the conclusion that plaintiff's alleged limitations resulted from the accident sued upon, rather than from a prior fall, a prior car accident, or certain preexisting degenerative conditions]). As we stated in Montgomery, in the absence of an explanation of the basis for concluding that the injury was caused by the subject accident, and not by other possible causes evidenced in the record, an expert's "conclusion that plaintiff's condition is causally related to the subject accident is mere speculation" insufficient to support a finding that such a causal link exists (19 AD3d at 290).

In this case, plaintiff's own evidence established that his left-knee injury may well have been caused not by the September 10 accident involving the instant defendants, but by the September 2 accident that took place eight days before. Nonetheless, Dr. Sedlin, plaintiff's medical expert, failed to explain how he concluded that the injury was caused by the second accident rather than the first. Plaintiff's own self-serving and conclusory testimony that he did not injure his knee until September 10, in addition to being incredible in view of its contradiction by his own expert and the emergency room records (which do not reflect any knee injury on September 10), was, in the absence of corroborating objective medical evidence, insufficient to raise a triable issue for submission to the jury (see Montgomery, 19 AD3d at 290; Nelson v Distant, 308 AD2d 338, 340 [2003]). In any event, defendants' medical expert, Dr. Harvey Levine, an orthopedic surgeon, testified that plaintiff's injury could not have been caused by the September 10 accident, since that accident (in which the cab in which plaintiff was riding rear-ended another car, without damage to either vehicle) did not generate sufficient force to cause such an injury — another point not addressed by plaintiff's evidence. Accordingly, plaintiff failed [*3]to sustain his burden of proving "a serious injury causally related to the accident" (Pommells, 4 NY3d at 579 [emphasis added]), and defendants were entitled to judgment as a matter of law.

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

ENTERED: MAY 9, 2006

CLERK

Rivera v. Benaroti

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Holly E. Peck of counsel), for Christopher Benaroti and Back Up Car
Limo, appellants.
Fiedelman & McGaw, Jericho (Dawn C. DeSimone of counsel),
for Luis Viena and Marble Film Inc., appellants.
Hach & Rose LLP, New York (Philip S. Abate of counsel), for
respondent.

Order, Supreme Court, Bronx County (Janice Bowman, J.), entered on or about August 19, 2005, which granted plaintiff's motion to reargue and upon reargument vacated its prior order, dated March 28, 2005, which had granted defendants' motions for summary judgment dismissing the complaint on the ground that plaintiff had not suffered a serious injury, unanimously modified, on the law, defendants' motions granted, the complaint dismissed, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

In this personal injury action arising from a three-car automobile accident, we determine whether plaintiff has provided objective medical evidence sufficient to raise a triable issue of fact as to whether he suffered a "serious injury" as required by Insurance Law § 5102(d), and admissible evidence sufficient
to raise a triable issue of fact as to causation (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Pommells v Perez, 4 NY3d 566, 572 [2005]). While the IAS court properly granted plaintiff's motion to reargue, we modify the appealed order to
grant defendants' motion for summary judgment since plaintiff has failed to satisfy the statutory proof requirements of serious injury.

A motion for reargument is addressed to the discretion of the court. The IAS court believed that it had overlooked the affirmation of plaintiff's treating orthopedic surgeon, Dr. Robert Goldstein, when it earlier granted defendants' motion for summary judgment, and since there is nothing in the record to indicate that the IAS court's belief was incorrect, the court was well within its discretion to grant reargument. Even when Dr. Goldstein's affirmation is considered, however, it is clear that plaintiff has failed to satisfy his burden of raising an issue of fact on whether he sustained serious injury. [*2]

Plaintiff was a back seat passenger in the second of three cars driving south on the FDR Drive very slowly in the right lane, when the first two cars came to a complete stop and the third car rear-ended the car in which plaintiff was riding. As a result of this accident, plaintiff was treated for complaints of pain in his back, neck and jaw with a soft cervical collar, and was prescribed pain killers and several months of physical therapy. In the week following the accident, plaintiff began brief treatment with Dr. Goldstein, who, based on an MRI, noted a herniation at L3-4 and nerve impingement on the L4 nerve as well as limited ranges of motion in his lumbar spine. At the time, plaintiff was employed as a waiter at the Regency Hotel. Despite the injuries allegedly sustained in this low-speed rear-end accident, plaintiff only missed 17 days of work.

Plaintiff conceded that defendants satisfied their burden of proof on their motions for summary judgment on the issue of serious injury, so the burden then shifted to plaintiff to show a triable issue of fact (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]; Brown v Achy, 9 AD3d 30, 31 [2004]). Defendants' expert, Dr. Golden, determined, based on specific tests, that plaintiff had a full range of motion and that any injuries which may have resulted from the accident were resolved. Dr. Goldstein's affirmation, prepared more than 19 months after plaintiff last sought treatment, did not contradict Dr. Golden's findings, which were rendered months after Dr. Goldstein treated plaintiff. Dr. Goldstein did assign specific percentages to the limitations in range of motion found when earlier treating plaintiff but did not indicate the specific tests which had produced such percentages. While Dr. Goldstein may well have relied on plaintiff's subjective complaints of pain, that would not provide a sufficient basis to defeat defendants' summary judgment motion (see Taylor v Terrigno, __ AD3d __, 2006 NY App Div LEXIS 3442 [2006]; Villalta v Schechter, 273 AD2d 299, 300 [2000]). Plaintiff's unexplained lengthy period without treatment further supports the conclusion that he did not sustain a serious injury as a result of this accident (see Pommells, 4 NY3d at 574; Quezada v Lugue, __ AD3d __, 810 NYS2d 463 [2006]). We have considered plaintiff's other contentions and find them to be without merit.

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

ENTERED: MAY 9, 2006

CLERK

Flores-King v. Encompass Insurance Company

In an action, inter alia, to recover damages for breach of an insurance contract, the defendants appeal from an order of the Supreme Court, Nassau County (Davis, J.), dated February 14, 2005, which denied their motion to dismiss the third, seventh, and eighth causes of action seeking compensatory and punitive damages and the claim to recover an attorney's fee.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion is granted, and the third, seventh, and eighth causes of actions, and the claim to recover an attorney's fee, are dismissed.

"A complaint does not state a claim for compensatory or punitive damages by alleging merely that the insurer engaged in a pattern of bad-faith conduct. The complaint must first state a claim of egregious tortious conduct directed at the insured claimant. Only then does an alleged pattern of bad-faith conduct attain legal significance insofar as it demonstrates that a public wrong would be vindicated by the award of punitive damages" (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 615; see New York Univ. v Continental Ins. Co., 87 NY2d 308, 315, 316; Varveris v Hermitage Ins. Co., 24 AD3d 537, 538). The insureds failed to set forth any facts or allegations to support their contention that the defendant insurers' conduct was egregious or fraudulent, or that it evidenced wanton dishonesty so as to imply a criminal indifference to civil obligations directed at the public generally. This case is, in effect, simply a private breach of contract [*2]dispute between the insurers and their insureds with no greater implications (see Varveris v Hermitage Ins. Co., supra; Fulton v Allstate Ins. Co., 14 AD3d 380; Martin v Group Health, 2 AD3d 414).

"It is well established that an insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy" (New York Univ. v Continental Ins. Co., supra at 324; see Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21). Thus, the plaintiffs' request to recover an attorney's fee is improper.
SCHMIDT, J.P., CRANE, SANTUCCI and SPOLZINO, JJ., concur.

Legendre v. Bao

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County (Agate, J.), dated January 19, 2005, as granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and (2) so much of a judgment of the same court entered September 16, 2005, as, upon the order dated January 19, 2005, and upon an order dated April 11, 2005, which, upon reargument and renewal, adhered to the prior determination, is in favor of the defendant and against her dismissing the first cause of action.

ORDERED that the appeal from the order dated January 19, 2005, is dismissed; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants. [*2]

The appeal from the intermediate order dated January 19, 2005, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

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 accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Giraldo v Mandanici, 24 AD3d 419). In opposition, the plaintiff failed to establish a triable issue of fact as to whether she sustained a serious injury. The numerous unsworn and unaffirmed reports of her treating doctor, chiropractor, and acupuncturist submitted by the plaintiff were without probative value (see Hernandez v Taub, 19 AD3d 368; Holder v Brown, 18 AD3d 815; Mendoza v Whitmire, 6 AD3d 675). Moreover, while two of the medical reports submitted in opposition were properly affirmed, they too failed to raise a triable issue of fact. The July 19, 2002, medical report of Dr. John McGee, the plaintiff's treating physician, was not based on a recent examination of the plaintiff (see Farozes v Kamran, 22 AD3d 458; Batista v Olivo, 17 AD3d 494; Silkowski v Alvarez, 19 AD3d 476; Constantinou v Surinder, 8 AD3d 323), and the medical report of Dr. Aric Hausknecht, the plaintiff's examining physician, failed to address the findings of degeneration in the plaintiff's cervical and lumbar spine as set forth in the report of the defendants' radiologist, Dr. Richard A. Heiden (see Giraldo v Mandanici, supra; Ifrach v Neimen, 306 AD2d 380; Lorthe v Adeyeye, 306 AD2d 252). Since the premise of Dr. Hausknecht's report was that the cervical and lumbar limitations observed upon his range of motion testing in December 2004 were caused by the subject accident, his conclusion in that regard was clearly speculative (see Giraldo v Mandanici, supra; Lorthe v Adeyeye, supra).
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

Allstate Insurance Company v. Williams

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Queens County (Hart, J.), dated September 15, 2003, which granted the petition.

ORDERED that the order is affirmed, with costs.

In June 1998 the appellants were involved in an automobile accident in Queens. At the time of the accident, the appellant Monica Williams was operating her vehicle and the appellants Wendy White and Eleace White were passengers in Williams's vehicle, which was insured by the petitioner, Allstate Insurance Company (hereinafter Allstate). The other vehicle involved in the accident fled the scene and the operator of that vehicle was unknown. The police report contained the license plate number and registered owner information for the other vehicle, although it is unclear how this information was obtained.

In June 1999 the appellants commenced an action to recover damages for personal injuries, in the Supreme Court, Queens County, against Kamaljit Singh, who was listed as the registered owner of the other vehicle in the police report. In November 1999 Singh interposed a verified answer asserting, inter alia, that the license plates had been removed from his vehicle and placed on another vehicle without his permission. In March 2000 the appellants filed a demand for uninsured motorist benefits and in April 2000 Allstate sought a permanent stay of arbitration in Supreme Court, Nassau County, on the ground that the appellants failed to establish that the other vehicle was uninsured. Singh's insurer, American Transit Insurance Company (hereinafter American [*2]Transit), and Singh, were added as additional party respondents. In October 2000 the Supreme Court granted Allstate's petition, upon American Transit's default, and permanently stayed the arbitration. The appellants, as parties to that proceeding, neither appealed that order nor sought a severance pursuant to CPLR 3215(a) or any other relief. Instead, the appellants pursued their civil action against Singh in Supreme Court, Nassau County. In May 2003 the Supreme Court dismissed the action after Singh submitted proof that the license plates on the other vehicle had been stolen. In July 2003 the appellants filed another demand for arbitration and Allstate commenced a proceeding to stay the arbitration in the Supreme Court, Queens County. The Supreme Court granted Allstate's petition on the ground that the issues before the court had already been resolved in the prior proceeding to stay arbitration. We agree.

Res judicata provides finality in the resolution of disputes to assure that parties may not be vexed by further litigation (see Matter of Reilly v Reid, 45 NY2d 24, 28). The policy against relitigation of adjudicated disputes is strong enough to bar a second action or proceeding even when further investigation indicates that the prior determination was erroneously made, whether due to the parties' oversight or court error (id. at 28). Under New York's transactional approach to res judicata, once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or even if seeking a different remedy (see O'Brien v City of Syracuse, 54 NY2d 353, 357). The doctrine is applicable to an order or judgment entered upon default that has not been vacated, as well as to issues that were or could have been raised in the prior proceeding (see Matter of Eagle Ins. Co. v Facey, 272 AD2d 399, 400).

The Supreme Court properly applied the doctrine of res judicata to this case as the appellants could have contested Allstate's assertions in the prior proceeding, even though the court granted Allstate's petition on default against American Transit. The appellants had been aware of Singh's stolen license plate defense well before filing their initial demand for uninsured motorist arbitration. Thus, after the Supreme Court stayed the arbitration upon the default of American Transit, the appellants could have sought a severance of Allstate's claim against them and requested a hearing on the stolen license plate issue. However, they took no further action in that proceeding and did not seek appellate review. Instead, the appellants apparently accepted the permanent stay of arbitration and charted their own procedural course by pursuing the negligence action against Singh; thus, they cannot now be heard to complain (see Matter of Prudential Prop. & Cas. Ins. Co. v Green, 146 AD2d 699, 701). The determination in the prior proceeding was res judicata as to any claims which were raised or could have been raised in that proceeding (see Matter of Firemen's Ins. Co. of Newark, N.J. v Hopkins, 244 AD2d 485).
CRANE, J.P., KRAUSMAN, RIVERA and DILLON, JJ., concur.

Liberty Mutual Insurance Company v. Goddard

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, State Farm Fire and Casualty Company appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated September 7, 2004, which, after a hearing, granted the petition, permanently stayed the arbitration, and directed it to defend and indemnify Larchins Valmond with respect to the subject collision.

ORDERED that the order is modified, on the law, by deleting the provision thereof directing State Farm Fire and Casualty Company to defend and indemnify Larchins Valmond with respect to the subject collision; as so modified, the order is affirmed, with costs.

William R. Goddard sustained injuries in a collision between a vehicle he operated and a vehicle owned by Larchins Valmond, an insured under a policy issued by the appellant, State Farm Fire and Casualty Company (hereinafter State Farm). State Farm disclaimed coverage of [*2]Goddard's injuries on the ground, among others, that the collision was intentional and staged. Goddard thereafter submitted a claim for uninsured motorist coverage to the petitioner, Liberty Mutual Insurance Company (hereinafter Liberty Mutual), which insured the vehicle he was operating. After a hearing, the Supreme Court granted Liberty Mutual's petition to permanently stay arbitration of Goddard's claim, and directed State Farm to defend and indemnify Valmond.

Since Goddard's injuries were not the result of an accident, he is precluded from recovering uninsured motorist benefits under Liberty Mutual's policy (see State Farm Mut. Auto Ins. Co. v Laguerre, 305 AD2d 490, 491; Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522). Accordingly, Liberty Mutual's petition to permanently stay arbitration of Goddard's uninsured motorist coverage claim was properly granted.

Further, it is well settled that an intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see State Farm Mut. Auto. Ins. Co. v Laguerre, supra at 491; Matter of Government Empls. Ins. Co. v Shaulskaya, supra at 522-523; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752). The evidence at the hearing established that the collision was intentional and staged. Thus, it was not covered by the insurance policy between Valmond and State Farm. Accordingly, the Supreme Court erred in directing State Farm to defend and indemnify Valmond in connection with the collision.

Moreover, we note that State Farm was not required by Insurance Law § 3420(d) to issue a disclaimer in a timely fashion because its denial of coverage was based upon a lack of coverage and not a policy exclusion (see Matter of State Farm Mut. Auto. Ins. Co. v Laguerre, supra at 491; Matter of Metro Med. Diagnostics v Eagle Ins. Co., supra at 752).
FLORIO, J.P., MILLER, ADAMS and SKELOS, JJ., concur.

Vishnevsky v. Glassberg

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated October 29, 2004, which granted reargument, vacated its prior order dated February 20, 2004, granting the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiffs Nadia Vishnevsky and Mustafa Huseinovic did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied the defendant's motion.

ORDERED that the order is modified, on the law, by deleting the provisions thereof, upon reargument, vacating the order dated February 20, 2004, and denying the defendant's motion for summary judgment and substituting therefor a provision, upon reargument, adhering to the prior determination in the order dated February 20, 2004, granting the defendant's motion for summary judgment; as so modified, the order is affirmed, with costs to the defendant.

The Supreme Court providently exercised its discretion in granting reargument (see generally Foley v Roche, 68 AD2d 558, 567-568) but erred in failing to adhere to its prior determination. The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that neither plaintiff, as a result of the accident, sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Zuckerman v City of New York, 49 NY2d 557, 562-563). In opposition, the plaintiffs failed to come forward with admissible evidence sufficient to raise an issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 357-358; Grossman v Wright, 268 AD2d 79, 83-85). Specifically, Dr. Etkind's medical reports, which the plaintiffs relied upon in [*2]opposition, were unsworn and thus without probative value (see Hernandez v Taub, 19 AD3d 368; Holder v Brown, 18 AD3d 815, 816). The plaintiffs also relied upon the affirmations of Dr. St. Hill, who impermissibly relied upon the unsworn reports of another doctor. Therefore, the plaintiffs may not rely on Dr. St. Hill's affirmation to defeat the motion for summary judgment (see Magarin v Kropf, 24 AD3d 733, 734; Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The operative reports the plaintiffs submitted in opposition failed to causally relate the plaintiffs' injuries to the accident and, thus, were inadequate to raise any issue of fact (see Bucci v Kempinski, 273 AD2d 333; Waaland v Weiss, 228 AD2d 435, 436).

In opposition to the defendant's prima facie demonstration, the plaintiffs did not submit any competent medical evidence which would raise a triable issue of fact that either plaintiff was unable to perform substantially all of his or her daily activities for not less than 90 of the first 180 days subsequent to the accident (see Davis v New York City Tr. Auth., 294 AD2d 531; Sainte-Aime v Ho, 274 AD2d 569, 570; Arshad v Gomer, 268 AD2d 450).

In light of our determination, the defendant's remaining contention has been rendered academic.
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

Republic Long Island, Inc. v. Vanacore

In an action for a judgment declaring that the respondents G.M.A.C. Insurance Company and Integon National Insurance Company are obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Gambine v Woodbury Meadows Senior Living Redevelopment Corp., pending in the Supreme Court, Nassau County, under Index No. 927-02, or alternatively, to recover damages against Andrew J. Vanacore, Inc., for negligence and/or breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered June 9, 2005, as granted that branch of the motion of the defendants G.M.A.C. Insurance Company and Integon National Insurance Company, and the separate motion of the defendant Andrew J. Vanacore, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them, and denied its cross motion for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Andrew J. Vanacore, Inc., for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and [*2]the complaint is reinstated insofar as asserted against the defendant Andrew J. Vanacore, Inc.

The underlying action concerned a slip and fall in a parking lot that had been snowplowed by the appellant. The appellant requested indemnification and defense in the underlying action from G.M.A.C. Insurance Company and Integon National Insurance Company (hereinafter the insurers), pursuant to a Personal Automobile Policy (hereinafter the policy). The policy contains a standard automobile liability provision which requires the insurers to defend and indemnify their insured for accidents resulting in bodily injury or property damage, arising out of the "ownership, maintenance, or use" of the insured vehicle. The Supreme Court properly found that the accident was not covered by the above "use and operation" clause, because the injuries "did not result from the intrinsic nature of the motor vehicle as such, nor did the use of the automobile itself produce the injury, but, at most, contributed to the condition which produced it" (Duroseau v Town of Hempstead, 117 AD2d 579, 580; see Lumbermen's Mut. Cas. Co. v Logan, 88 AD2d 971). Accordingly, the Supreme Court properly granted that branch of the insurers' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

However, the Supreme Court should have denied the separate motion of Andrew J. Vanacore, Inc. (hereinafter the broker), for summary judgment. "Generally . . . insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so" (Murphy v Kuhn, 90 NY2d 266, 270; see Utica First Ins. Co. v Floyd Holding, 5 AD3d 762, 763; Santaniello v Interboro Mut. Indem. Ins. Co., 267 AD2d 372). In opposition to the motion, the appellant submitted an affidavit from its principal in which he stated that the broker failed to advise him of its inability to procure general liability coverage for the appellant's snowplowing activities. This was sufficient to raise a question of fact as to whether the broker failed to exercise due care in the transaction (see Reilly v Progressive Ins. Co., 288 AD2d 365, 365-366; Santaniello v Interboro Mut. Indem. Ins. Co., supra at 372).

Moreover, the crux of the appellant's claim against the broker hinged on the credibility of the witnesses, who presented contradictory affidavits. "Generally, questions of credibility on motions for summary judgment should not be determined by affidavit" (Zulferino v State Farm Auto. Ins. Co., 123 AD2d 432; see Williams v Dover Home Improvement, 276 AD2d 626, 627; Combs v Incorporated Vil. of Freeport, 139 AD2d 688, 689). This was an issue which should have been reserved for the trier of fact.

Haddadnia v. Saville

Lahtinen, J.

Appeal from an order of the Supreme Court (Krogmann, J.), entered July 11, 2005 in Warren County, which denied defendants' motion for summary judgment dismissing the complaint.

On June 21, 2001, a van owned by the corporate defendants and driven by defendant Peter J. Saville struck the rear of a stopped car operated by plaintiff Benham Haddadnia (hereinafter plaintiff) on Corinth Road in Warren County. Plaintiff was transported to the emergency room of the Glens Falls Hospital, where his primary complaints included pain in his lower back and hip, radiating down his left leg. At a visit to the office of his orthopedic surgeon, Richard Saunders, in July 2001, plaintiff continued complaining of severe pain in his back and down his left leg, X rays were taken of his lumbar spine and he was diagnosed with lumbar spine strain and sciatica. He returned for further treatment on August 6, 2001 complaining of progressive pain in his left foot and an X ray revealed an avulsion fracture of the left fifth metatarsal. Thereafter, plaintiff and his wife, derivatively, commenced this negligence action, asserting the foot fracture as constituting the requisite serious injury (see Insurance Law § 5102 [d]). Following disclosure, defendants moved for summary judgment upon the ground that the [*2]fracture was not causally related to the accident. Supreme Court denied the motion and this appeal ensued.

Defendants had the threshold burden of establishing by competent medical evidence that plaintiff did not sustain a serious injury caused by the accident (see John v Engel, 2 AD3d 1027, 1028 [2003]). There is little dispute that defendants met this burden with affidavits from various experts, including one from a doctor of podiatric medicine who set forth the reasons for his opinion that the fracture did not occur at the time of the accident. The burden thus shifted to plaintiffs to produce competent medical proof supported by objective findings to raise a triable issue (see Nichols v Turner, 6 AD3d 1009, 1011 [2004]; Mrozinski v St. John, 304 AD2d 950, 951 [2003]).

Plaintiffs' proof included the detailed affidavit of Saunders, who had treated plaintiff since March 2000, over a year before the accident. Saunders was fully familiar with plaintiff's medical history both before the accident (when he treated him for an elbow injury and a cyst on his finger) and subsequent thereto. He opined with a reasonable degree of medical certainty that the foot fracture was caused by the accident and set forth the reasons for the delay in the diagnosis. Saunders explained that it was not unusual for an individual with "trauma to multiple areas of the lower body to not fully appreciate/recognize the significance of pain to any one particular area due to pain and numbness in another area." He added that the pain and numbness in plaintiff's back and lower extremities created a situation where he was "unable to fully appreciate the injury to his foot until the numbness he experienced in his back and leg subsided, revealing the full extent of the pain he was suffering in his left foot." He further observed that the manner in which the accident occurred was, in his opinion, consistent with causing the type of fracture that plaintiff sustained. Saunders directly addressed defendants' suggestion that the fracture predated the accident, indicating that no objective medical proof supported that suggestion and adding that he had treated plaintiff for over a year before the accident "with absolutely no complaints of pain in the foot." While defendants submitted proof from experts contesting virtually every aspect of Saunders' opinions, that proof gives rise to a dispute among experts for the jury to decide (see Apuzzo v Ferguson, 20 AD3d 647, 648 [2005]). Viewing the evidence submitted by the parties in the light most favorable to plaintiffs (see Reilly v Fulmer, 9 AD3d 818, 820 [2004]), we agree with Supreme Court's conclusion that triable factual issues exist.

Allstate Insurance Company v. Marcone

In an action for a judgment declaring the parties' rights and duties under certain insurance policies issued by the plaintiff to the defendant Nelda Marcone, the defendants Michael A. Marcone and Nelda Marcone appeal, and the defendant Kerri Iossa, individually and as administratrix of the estate of Giuseppe Iossa, separately appeals, from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered April 26, 2004, which, upon an order of the same court dated August 4, 2003, granting the plaintiff's motion for summary judgment and denying their respective cross motions for summary judgment, declared that the plaintiff is not obligated to defend or indemnify the defendant Michael A. Marcone or the defendant Nelda Marcone with respect to an incident which occurred on December 3, 1995.

ORDERED that the judgment is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, the motion is denied, and the order dated August 4, 2003, is modified accordingly.

On December 3, 1995, Giuseppe Iossa (hereinafter the decedent) and the defendant Michael A. Marcone (hereinafter Marcone) were deer hunting together when Marcone accidentally shot and killed the decedent. Marcone lived with his mother, the defendant Nelda Marcone, who [*2]was a named insured on homeowner's and umbrella insurance policies issued by the plaintiff, Allstate Insurance Company (hereinafter Allstate). Both policies required the insured to promptly notify Allstate of any occurrence for which coverage was sought.

At the time of the hunting accident, the decedent's wife, the defendant Kerri Iossa (hereinafter Iossa), had no information about Marcone other than his name and the fact that he resided in either Manhattan or the Bronx. On two occasions, Iossa's attorney mailed letters to Marcone, in care of every individual listed in the Manhattan and Bronx telephone directories who shared his surname, advising Marcone that Iossa intended to commence a wrongful death action against him and requesting that he forward the letter to his homeowner's insurance carrier. Iossa's attorney also made an unsuccessful attempt to obtain the results of the New York State Police investigation of the hunting accident. Iossa retained new counsel, who was finally able to confirm Marcone's address in October 1997.

In November 1997 Iossa, acting individually and as administratrix of the decedent's estate, commenced a wrongful death action against Marcone and the other parties. In a letter dated December 29, 1997, an attorney retained by Marcone advised Allstate of the hunting accident and the resulting wrongful death action, and forwarded to Allstate a copy of the summons and complaint, which had been served on Marcone on December 19, 1997. In a letter dated January 22, 1998, Allstate disclaimed coverage on the ground that Marcone and his mother had not given Allstate prompt written notice of the hunting accident. Allstate subsequently commenced this action seeking a judgment declaring, in effect, that it is not obligated to defend or indemnify Marcone in the underlying wrongful death action.

The notice provisions of the insurance policies involved in this case must be construed as requiring the insureds to give notice "within a reasonable time under all the circumstances" (Deso v London & Lancashire Indem. Co. of America, 3 NY2d 127, 129; see Insurance Law § 3420[a][4]; Serravillo v Sterling Ins. Co., 261 AD2d 384; Eveready Ins. Co. v Chavis, 150 AD2d 332). In the absence of a valid excuse, "a failure to satisfy the notice requirement vitiates the policy" (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440; see White v City of New York, 81 NY2d 955, 957; Deso v London & Lancashire Indem. Co., supra at 129). Allstate established its prima facie entitlement to judgment as a matter of law by demonstrating a delay of more than two years between the hunting accident on December 3, 1995, and the notice of the accident sent to it by Marcone's attorney in December 1997. The Supreme Court properly determined that the excuses proffered by Marcone, which were based primarily on his alleged lack of sophistication and unfamiliarity with insurance claims and his mother's inability to understand the English language, were insufficient to raise a triable issue of fact as to the reasonableness of the two-year delay (see Virtuoso v Aetna Cas. & Sur. Co., 134 AD2d 252). We conclude, however, that a triable issue of fact exists as to whether Iossa made a reasonably diligent effort to locate Marcone and his insurer and to provide notice to the insurer itself.

A party injured by an insured individual has an independent interest in the protection afforded by the insured's liability coverage (see Jenkins v Burgos, 99 AD2d 217, 220-221; Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 567, affd 4 NY2d 1028). Accordingly, "when the insured has failed to give proper notice, the injured party, by giving notice himself [or herself], can preserve his [or her] rights to proceed directly against the insurer" (Lauritano v American Fid. Fire Ins. Co., supra at 568; see Insurance Law § 3420[a][3]). Notice given by an injured party "is not to [*3]be judged by the same standards, in terms of time, as govern notice by the insured, since what is reasonably possible for the insured may not be reasonably practical for the injured person. . . . In each case, the test is one of reasonableness, measured by the diligence exercised by the injured party in light of the prospects afforded to him under the circumstances" (Jenkins v Burgos, supra at 221 [citation omitted]; see Eveready Ins. Co. v Chavis, supra at 333; Elmuccio v Allstate Ins. Co., 149 AD2d 653; Lauritano v American Fid. Fire Ins. Co., supra at 568). The reasonableness of any delay and the sufficiency of the excuse offered ordinarily present questions of fact to be resolved at trial (see Eveready Ins. Co. v Chavis, supra at 333; State of New York v Zurich Ins. Co., 199 AD2d 916, 917).

Judging not by hindsight, but by "the standard of what appeared reasonable at the time" (Lauritano v American Fid. Fire Ins. Co., supra at 570), it cannot be determined as a matter of law that Iossa was required to undertake more aggressive means of locating Marcone, ascertaining his insurance coverage, and notifying his insurer of the hunting accident. Iossa's attorney attempted to obtain information about Marcone from the police, and expressly requested in two letters reasonably designed to reach Marcone that he provide the required notice to his insurer. Iossa's diligence in locating Marcone for the purpose of providing notice to his insurer could be found by a rational trier of fact to be reasonable. Accordingly, summary judgment was not appropriate.

Iossa's remaining contentions are without merit (see Argo Corp. v Greater New York Mut. Ins. Co., 4 NY3d 332; Massachusetts Bay Ins. Co. v Flood, 128 AD2d 683).
ADAMS, J.P., RIVERA, SKELOS and LIFSON, JJ., concur.

Gavin v. Sati

In an action to recover damages for personal injuries, the defendants Chetan Sati and Sashi Sati appeal from so much of a judgment of the Supreme Court, Queens County (Risi, J.), entered December 21, 2004, as, upon a jury verdict finding that the plaintiff James Gavin sustained a serious injury within the meaning of Insurance Law § 5102(d) and upon the denial of their motion, in effect, pursuant to CPLR 4404 to set aside the jury verdict and for judgment as a matter of law, is in favor of the plaintiff James Gavin and against them in the principal sum of $35,000.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted by the plaintiff James Gavin against the appellants.

The jury determined that the plaintiff James Gavin sustained a medically determined injury or impairment which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for at least 90 out of the 180 days immediately following the accident (see Insurance Law § 5102[d]; Licari v Elliott, 57 NY2d 230, 237; Krakofsky v Fox-Rizzi, 273 AD2d 277). Viewing the evidence in the light most favorable to Gavin, "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499). Gavin's claim that he was unable to work for eight months following the accident was not supported by any competent medical evidence linking his purported [*2]inability to work with his alleged accident-related injuries (see Kearse v New York City Tr. Auth., 16 AD3d 46, 52; Arshad v Gomer, 268 AD2d 450). Thus, the trial court should have granted the appellants' motion, in effect, pursuant to CPLR 4404 to set aside the jury verdict and for judgment as a matter of law.
ADAMS, J.P., RITTER, GOLDSTEIN and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Lavaud v. Country-Wide Insurance Company

Lawrence L. Kaye, P.C. (Seligson, Rothman & Rothman, New
York, N.Y. [Martin S. Rothman] of counsel), for appellant.
Stephen B. Kahn, Yorktown Heights, N.Y., for respondent.

In an action to recover damages for the bad faith refusal to settle a personal injury claim, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Harkavy, J.), dated October 18, 2004, which granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment.

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

"[A]n insurer may be held liable for the breach of its duty of good faith' in defending and settling claims over which it exercises exclusive control on behalf of its insured" (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452). To establish a prima facie case of bad faith refusal to settle, a plaintiff must demonstrate that the insurance carrier's conduct constituted a gross disregard of the insured's interests (see id. at 453; Vecchione v Amica Mut. Ins. Co., 274 AD2d 576, 578).

Country-Wide Insurance Company (hereinafter Country-Wide) met its prima facie burden of establishing that it did not breach its duty of acting in good faith. Country-Wide's failure to respond to a time-restricted demand within the full policy limits did not, under the circumstances, constitute a gross disregard of the interests of Don N. Nixon, a/k/a Donnon N. Nixon, as the insured (see Pavia v State Farm Mut. Auto. Ins. Co., supra at 455). In opposition, Keitly Lavaud, as Nixon's assignee, failed to raise a triable issue of fact as to whether Country-Wide acted in bad faith in failing [*2]to settle the underlying action (see Levit v Allstate Ins. Co., 9 AD3d 417, 417). Accordingly, the Supreme Court properly granted Country-Wide's motion for summary judgment dismissing the complaint and denied the cross motion for summary judgment.

SCHMIDT, J.P., CRANE, SANTUCCI and SPOLZINO, JJ., concur.

AIG Centennial Insurance Company v. Chunasamy

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, State Farm Mutual Insurance Company appeals from a judgment of the Supreme Court, Queens County (Conway, R.), dated July 8, 2005, which, after a hearing, inter alia, determined that its disclaimer was untimely as a matter of law and directed it to provide coverage for the subject accident.

ORDERED that the judgment is affirmed, with costs.

"It is well established that the decision of the fact-finding court should not be disturbed on appeal unless the court's conclusion could not be reached by any fair interpretation of the evidence" (Matter of State Farm Mut. Auto. Ins. Co. v Nater, 22 AD3d 762, 763; see Matter of Allstate Ins. Co. v McMahon, 251 AD2d 571, 572; Matter of CGU Ins. Co v Velez, 287 AD2d 624). Here, the Supreme Court's determination that State Farm Mutual Insurance Company (hereinafter State Farm) was first notified of the subject accident in "[l]ate March of 2004," was supported by a fair interpretation of the evidence. Thus, the Supreme Court properly concluded that State Farm's failure to disclaim until July 12, 2004, was unreasonable as a matter of law (see Matter of American Express Prop. Cas. Co. v Vinci, 18 AD3d 655, 656; Pennsylvania Lumbermans Mut. Ins. Co. v D & Sons Constr. Corp., 18 AD3d 843, 845; Wasserheit v New York Cent. Mut. Fire Ins. Co., 271 [*2]AD2d 439, 440; Matter of Allstate Ins. Co. v Souffrant, 221 AD2d 434).
ADAMS, J.P., RIVERA, SKELOS and LIFSON, JJ., concur.

Allcity Insurance Company v. Rhymes

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Kings County (Archer, J.H.O.), dated November 30, 2004, made after a hearing, which granted the petition and permanently stayed arbitration.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed on the merits, and the parties are directed to proceed to arbitration after the completion of examinations under oath and other requested disclosure.

The appellants, Lillie Rhymes and Hazel Thomas, allegedly were injured when a cab in which they were passengers was struck from the rear by another vehicle. They commenced an action against the owner of the alleged offending vehicle (the proposed additional respondent Rosalita M. Coons) and alleged driver of the offending vehicle (Michael Coons) to recover damages for personal injuries (hereinafter the Coons action). However, the Coons action was dismissed based on a determination that the Coons vehicle was not involved in the accident. The appellants thereafter demanded arbitration of a claim for uninsured motorist benefits from the petitioner Allcity Insurance Company (hereinafter Allcity). Allcity provided uninsured/underinsured coverage for the cab on the date in question pursuant to a policy issued to the owner. Allcity commenced this proceeding for a permanent stay of arbitration. Allcity alleged, inter alia, that the offending vehicle involved in the underlying accident was, in fact, the Coons vehicle, and that the vehicle was insured on the date in question. Allcity argued that it could not be bound by any determination to the contrary in the Coons [*2]action because it was not a party to that action. The appellants opposed the petition, arguing, inter alia, that there was no basis to challenge the prior determination that the Coons vehicle was not involved in the underlying accident. In reply, Allcity argued that "there is an issue of fact regarding coverage requiring a framed-issue hearing. The specific issue is whether the Coons vehicle was the one involved in the accident; if it was, then Allcity is entitled to a permanent stay of arbitration." The Supreme Court referred the matter to a judicial hearing officer (hereinafter the JHO) to "determine all issues preliminary to arbitration, including the issue of the identity and participation of the Coons vehicle in this accident." The order of reference directs the JHO to hear and determine "all issues raised in the papers." After a hearing, the JHO determined that the Coons vehicle was not involved in the underlying accident. However, the JHO granted the petition based on the lack of any evidence that the appellants were involved in the underlying accident. This issue was raised sua sponte by the JHO at the close of the hearing over the objection of counsel for the appellants. On appeal, the appellants argue that the JHO exceeded the scope of the order of reference in making such a determination. We agree and reverse.

The determination of the JHO that the appellants were not involved in the underlying accident exceeded the scope of the order of reference (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704; Matter of Eagle Ins. Co. v Suleymanova, 289 AD2d 404). Even assuming that this was a threshold issue to be determined by the court in the first instance (see CPLR 7503[b]), nowhere in the petition or in any of the other papers submitted to the court did any party or proposed party raise an issue as to whether the appellants were involved in the underlying accident. Indeed, the proposed additional respondents proffered transcripts of the deposition testimony of both appellants in the Coons action describing their involvement in the accident. Thus, this issue should not have been reached by the JHO.

The only other basis raised by Allcity for a permanent stay of arbitration was its allegation that it did not receive a timely notice of claim from the appellants. However, Allcity did not press this allegation before the JHO or proffer any evidence concerning the same, although the JHO was to hear and determine "all issues raised in the papers." By contrast, in opposition to the petition, the appellants proffered documentary evidence that they provided timely notice of the underlying accident to Allcity (see Matter of State Farm Mut. Auto. Ins. Co. v. Rinaldi, 27 AD3d 476). Thus, the petition should have been denied, the proceeding dismissed, and the parties directed to proceed to arbitration after the completion of examinations under oath and other requested disclosure.
MILLER, J.P., RITTER, GOLDSTEIN and LUNN, JJ., concur.

Moore v. Sarwar

In an action to recover damages for personal injuries, the defendant Earle Davis appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated April 29, 2005, which granted the plaintiff's motion for leave to amend the complaint to add a claim for punitive damages against him and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs to the appellant, the motion is denied, the cross motion is granted, upon searching the record, summary judgment is awarded to the defendants Mohammad Sarwar and Koney Island, Inc., dismissing the complaint insofar as asserted against them, and the complaint is dismissed in its entirety.

On August 14, 2003, at approximately 1:00 A.M., the plaintiff was a passenger in a taxicab owned by the defendant Koney Island, Inc., and operated by the defendant Mohammad Sarwar (hereinafter collectively referred to as the defendants). The defendants' vehicle was involved in an accident with a vehicle owned and operated by the appellant on the Belt Parkway in Brooklyn. The plaintiff commenced this action against the defendants and the appellant to recover damages for personal injuries allegedly sustained in the accident. [*2]

The appellant made a prima facie showing, via the affirmed medical reports of the appellant's examining orthopedist and neurologist, as well as the plaintiff's own deposition testimony, 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; Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's examining chiropractor impermissibly relied upon the unsworn and/or unaffirmed reports of a hospital and two doctors (see Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266). In addition, the chiropractor failed to acknowledge or account for a prior accident involving the plaintiff in December 2001 which resulted in a back injury and for which the plaintiff underwent physical therapy. Thus, the chiropractor's findings that the injuries to the plaintiff's spine were caused by the subject accident were speculative (see Allyn v Hanley, 2 AD3d 470, 471; Ifrach v Neiman, 306 AD2d 380, 381; Lorthe v Adeyeye, 306 AD2d 252, 253). The plaintiff also failed to submit 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 following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569). Moreover, neither the plaintiff nor his examining chiropractor adequately explained the approximately one and one-half year gap in the plaintiff's treatment between January 2004 and the examination conducted on April 13, 2005, in response to the cross motion for summary judgment (see Pommells v Perez, 4 NY3d 566; Batista v Olivo, 17 AD3d 494; Barnes v Cisneros, 15 AD3d 514).

While the defendants did not take an appeal from the order dated April 29, 2005, they did join in the cross motion of the appellant for summary judgment, relying on the appellant's arguments and submissions. Accordingly, we search the record pursuant to CPLR 3212(b) and award them summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111; Wilson v Buffa, 294 AD2d 357, 358).

In light of our determination, the appellant's remaining contention has been rendered academic.
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ.

Natural Stone Industries, Inc. v. Utica National Assurance Company

In an action, inter alia, for a judgment declaring that the defendant Transcontinental Insurance Company is obligated to defend and indemnify the plaintiffs in two underlying personal injury actions entitled Karim v Natural Stone Indus., pending in the Supreme Court, Queens County, under Index No. 6031/03, and Sattar v Natural Stone Indus., pending in the Supreme Court, Queens County, under Index No. 1241/02, respectively, the defendant Transcontinental Insurance Company appeals from so much of (1) an order of the Supreme Court, Queens County (Hart, J.), dated March 3, 2005, as granted that branch of the cross motion of the plaintiff Natural Stone Industries, Inc., which was for summary judgment declaring that the defendant Transcontinental Insurance Company is obligated to defend and indemnify it in the underlying personal injury actions and denied that branch of its motion which was for summary judgment with respect to that defendant, and (2) an amended order and judgment of the same court dated May 5, 2005, as granted the same relief and declared that the defendant Transcontinental Insurance Company is obligated to defend and indemnify the plaintiff Natural Stone Industries, Inc., in the underlying personal injury actions.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the amended order and judgment is modified, on the law, by deleting the provisions thereof granting that branch of the cross motion of the plaintiff Natural Stone [*2]Industries, Inc., which was for summary judgment declaring that the defendant Transcontinental Insurance Company is obligated to defend and indemnify it in the underlying personal injury actions and making the declaration, and substituting therefor a provision denying that branch of the cross motion; as so modified, the amended order and judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended order and judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the amended order and judgment (see CPLR 5501[a][1]).
On May 6, 2001, the plaintiff Natural Stone Industries, Inc. (hereinafter Natural Stone), hired Star Structurals, Inc. (hereinafter Star Structurals), to fabricate and install steel columns and beams for a roof addition on a Brooklyn warehouse. Although the parties' written contract contained no reference to insurance, the principals of both companies allegedly entered into an oral agreement requiring Star Structurals to procure liability insurance coverage, and to name Natural Stone as an additional insured on its policy. Star Structurals subsequently procured a liability insurance policy from the defendant Transcontinental Insurance Company (hereinafter Transcontinental). The Transcontinental policy did not identify Natural Stone as an additional insured . However, the policy contained a provision in which it defined an "insured" to include any person or organization whom the insured was "required to add as an additional insured on this policy under . . . an oral contract or agreement where a certificate of insurance showing that person or organization as an additional insured has been issued." A certificate of insurance issued to Star Structurals by its insurance broker contained a box captioned "Certificate Holder" on one side, and "Additional Insured" on the other side. National Stone's name appears inside this box, in between the two captions.

In July 2001, two Star Structural employees were injured while working on the roof construction project, and both employees commenced personal injuries actions against Natural Stone. When Transcontinental disclaimed coverage upon the ground that Natural Stone was not an additional insured under its policy, the plaintiffs commenced this action seeking, inter alia, a judgment declaring that Transcontinental is obligated to defend and indemnify Natural Stone in the underlying personal injury actions. Transcontinental thereafter moved for summary judgment, contending that Natural Stone could not be considered an additional insured as defined by the policy because the certificate of insurance merely identified it as a certificate holder. Natural Stone cross-moved for summary judgment, arguing that the certificate of insurance was ambiguous because it did not clearly identify it as either a certificate holder or additional insured, and that this ambiguity should be construed against Transcontinental. The Supreme Court denied Transcontinental's motion and granted the cross motion, concluding that the certificate of insurance was ambiguous, and that Transcontinental should be held responsible for the ambiguity because its policy made the issuance of a certificate of insurance determinative of coverage as an additional insured.

On appeal, Transcontinental contends that the Supreme Court erred in denying its motion for summary judgment because even assuming the existence of an oral agreement to procure [*3]insurance for Natural Stone's benefit, the subject certificate of insurance showed that Natural Stone was a certificate holder, and not an additional insured. However, we agree with the Supreme Court that the certificate is ambiguous on its face, and does not clearly label Natural Stone as either a certificate holder or additional insured. Under these circumstances, Transcontinental failed to sustain its prima facie burden of establishing that it is entitled to judgment as a matter of law because Natural Stone was not an additional insured as this term is defined by the subject policy (see Travelers Ins. Co. v Utica Mut. Ins. Co., 27 AD3d 456; Travelers Indemn. Co. of Am. v Royal Ins. Co. of Am., 22 AD3d 252; Morrison-Knudsen Co. v Continental Cas. Co., 181 AD2d 500; Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co., 151 AD2d 207).

However, the Supreme Court erred in granting Natural Stone's cross motion for summary judgment upon the ground that the ambiguity in the certificate of insurance should be construed against Transcontinental. The general rule that ambiguous provisions of an insurance policy must be construed against the insurer who drafted it (see Matter of Mostow v State Farm Ins. Co., 88 NY2d 321; Bedford Cent. School Dist. v Commercial Union Ins. Co., 295 AD2d 295; Custom Weld Indus. v Chabina Co., 272 AD2d 364) has no application here because the subject certificate of insurance was prepared by an insurance brokerage company, and not by Transcontinental. The certificate of insurance was not itself incorporated into Transcontinental's policy merely because the definition of "insured" included any organization whom the insured was required to add as an additional insured pursuant to an oral agreement "where a certificate of insurance showing that . . . organization as an additional insured has been issued." Accordingly, the issue of whether the subject certificate of insurance was intended to name and did in fact name Natural Stone as an additional insured must await resolution at trial.
CRANE, J.P., KRAUSMAN, LUCIANO and RIVERA, JJ., concur.

State Farm Mutual Automobile Insurance Company v. Baltz Concrete Construction

In a subrogation action to recover insurance benefits paid to the plaintiff's insured, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated February 17, 2005, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

We agree with the plaintiff's contention that the no-fault provisions of the Insurance Law (see Insurance Law §§ 5102[a], [b], 5103[a]) do not bar it from seeking recovery of benefits it paid to its insured for "extended economic loss" pursuant to an "additional personal injury protection" endorsement (Allstate Ins. Co. v Stein, 1 NY3d 416, 417; see Allstate Ins. Co. v Mazzola, 175 F3d 255 [2d Cir]). However, the defendants established their entitlement to judgment as a matter of law by submitting evidence that the plaintiff's subrogor unsuccessfully sought to recover damages for his extended economic loss from them in a prior action, which culminated in a jury verdict in their favor. An insurance company which has paid additional personal injury protection benefits for extended economic loss has a traditional equitable right of subrogation, and thus acquires only the rights that its subrogor had, with no enlargement or diminution (see Allstate Ins. Co. v Stein, supra). Since the plaintiff's subrogor unsuccessfully sought to recover damages for extended [*2]economic loss in a prior action, the jury verdict in that action is entitled to preclusive effect on the issue of the plaintiff's entitlement to recoup the benefits it paid to its subrogor for extended economic loss. Accordingly, the motion for summary judgment dismissing the complaint was properly granted.
SCHMIDT, J.P., KRAUSMAN, LUCIANO and COVELLO, JJ., concur.

Welch v. Penske Truck Leasing Corp

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Nicolai, J.), entered October 18, 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 affirmed, with costs.

Although we affirm the order of the Supreme Court, we do so on different grounds than those relied upon by that court. Contrary to the Supreme Court's determination, the defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed medical report of the defendants' examining physician indicated that magnetic resonance imaging of the plaintiff's cervical and lumbar spine showed a herniation at L5-S1 and bulging discs from C4-5 through C6-7. Notably, the report of the defendants' examining physician specified the degrees of range of motion in the plaintiff's cervical and lumbar spine without comparing those findings to the normal range of motion (see Browdame v Candura, 25 AD3d 747; Baudillo v Pam Car & Truck Rental, Inc., 23 AD3d 420; Aronov v Leybovich, 3 AD3d 511, 512). Since the defendants failed to meet their initial burden of establishing a prima facie case, the sufficiency of the plaintiff's opposition papers need not be considered (see Coscia v 938 Trading [*2]Corp., 283 AD2d 538).
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

Bray v. Rosas

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 26, 2005, which, insofar as granted plaintiff's motion for summary judgment as to fault with respect to defendant Castillo and insofar as granted the cross motion of the Rosas defendants for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the Rosas cross motion denied, the complaint reinstated as to them, and, upon a search of the record, the complaint against defendant Castillo dismissed. The Clerk is directed to enter judgment dismissing the complaint against defendant Castillo.

On September 11, 2002, plaintiff was involved in a car accident with defendants. The vehicle plaintiff was operating was struck in the rear by the vehicle owned by defendant Cathryn Rosas and operated by defendant Ruben Rosas. The impact propelled plaintiff's vehicle forward, and it struck the rear of defendant Jose Castillo's vehicle. Plaintiff moved for summary judgment on the issue of fault. The Rosas defendants cross-moved for summary judgment, claiming that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). Defendant Castillo cross-moved for summary judgment on the grounds of fault and serious injury. The court granted plaintiff's motion as to fault and also granted defendants' respective motions to dismiss on the ground that plaintiff failed to raise a factual issue as to serious injury.

Defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury as a result of this accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Webb v Johnson, 13 AD3d 54 [2004]). Although defendants' orthopedist specified the degrees of range of motion found in plaintiff's lumbar spine, he failed to compare those findings to the normal range of motion, "thereby leaving the court to speculate as to the meaning of those figures" (Manceri v Bowe, 19 AD3d 462, 463 [2005]; see also Toure, 98 NY2d at 350, and Webb, 13 AD3d 54). While plaintiff appears to have abandoned his claim of injuries to the [*2]cervical spine, we observe that defendants' orthopedist not only failed to identify normal range of motion of the cervical spine, but also failed to specify the degrees of range of motion in plaintiff's cervical spine.

Both the neurologist's and orthopedist's respective reports do not support an inference that plaintiff's injury, specifically a fracture at T11, related to a prior accident, as neither report indicates whether the doctor possessed any medical record relating to an earlier accident (see Webb, 13 AD3d at 54), and, in any event, neither doctor relates plaintiff's current complaint to any prior injury. The Rosas defendants' attorney's reply affirmation attempts to establish a causal connection between the fracture and the earlier accident. However, counsel's hearsay affirmation is legally incompetent because, inter alia, she has not demonstrated expertise at interpreting medical records nor is there any basis to conclude she has personal knowledge of the facts asserted (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). The Rosas defendants' attorney maintains that plaintiff's doctor does not relate the T11 fracture to the subject accident. However, these defendants' experts fail to state, in support of their motion, that the T11 fracture was not caused by the subject accident. Indeed, as proponents of summary judgment, defendants bore the initial burden of establishing that plaintiff has no cause of action (see Rodriguez v Goldstein, 182 AD2d 396 [1992]; compare Brown v Achy, 9 AD3d 30 [2004]).

Because the Rosas defendants failed to make a prima facie showing, their cross motion must be denied, regardless of the claimed insufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Diaz v Nunez, 5 AD3d 302 [2004]).

Upon a search of the record, and as conceded at oral argument, we find defendant Castillo was not at fault in this accident (see Johnson v Phillips, 261 AD2d 269 [1999]). Accordingly, Castillo's cross motion for summary judgment on the issue of fault should have been granted and the complaint dismissed as to him.

THIS CONSTITUTES THE DECISION AND ORDER