Dear Coverage Pointers Subscribers:

Thanks so much for the wonderful comments I received after last week's issue and the discussion on involvement in national defense organizations. We are all in this together and anything we can do to help improve our system of civil justice, assure a fair balance in the courtroom for all side and assure that our Seventh Amendment right to a civil jury trial is protected surely helps us all.

Once a month or so, we remind you that we will be delighted to provide your staff with training on any number of subjects that might be helpful, including:

  1. Primary and Excess Insurance - Rights & Responsibilities
  1. SUM Claims Handling
  1. Preventing Bad Faith Claims - First Party Cases
  1. Preventing Bad Faith Claims - Liability Cases
  1. Late Notice - How to Handle
  1. The Cooperation Clause - How to Handle
  1. NY Disclaimer Letter - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)
  1. No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal
  1. No Fault Regs - Knowledge is Power
  1. An Auto Liability Policy Primer
  1. A CGL Policy Primer
  1. A Homeowners Liability Policy Primer
  1. EUO's Under First Party Policies
  1. How to Resolve Coverage Disputes: DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)
  1. Insured Selected Counsel: When is it Necessary and How to Avoid it?
  1. Mediation and the Role of the Mediator
  1. ADR and How to Get to "Yes".
  1. The Internet as a Tool for the Claims Representative
  1. Construction Cases - The Interplay Between Indemnity Agreements and Insurance Policies
  1. Other Insurance, Additional Insureds and Priority of Coverage

We've traveled far and wide this season providing in-house training and are delighted to work with you to craft a topic or topics that meet your particular needs.

The highlights of this week's issue:

· Defects in Title Not Excluded from Coverage in Title Policy

· Once Again, Insurer Fails to Prove Insured's Lack of Cooperation -- Carrier Must Demonstrate Diligence in Seeking Insured's Cooperation and Willful and Avowed Obstruction by the Insured

· Question of Fact Whether Injury during Training Was an Occurrence under the Policy; Insured's Delay in Giving Notice for Four Months - Based on his Belief that He Would Not be Sued - May (or May Not) Be Reasonable Excuse

· First Part Claim: "Settling and Cracking" and Negligent Work Exclusions Not a Bar to Coverage

· What is a "Private Passenger Auto?"

 

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

· Case Dismissed as Plaintiff Fails to Rebut Defendant's Expert Report or Explain Treatment Gap

· Nonconclusory Affidavits from Defendant's Experts Insufficient to Dismiss Case

· Unexplained Cessation of Treatment and No Finding of Disability by Plaintiff's Doctor Earns Dismissal for Defendant

· Causal Connection of Injuries to Accident by Plaintiff's Physician Were Speculative

· Defendant's Failure to Address Findings of Range of Motion Limitations Preserves Plaintiff's Claim

· Defendant Fails to Meet Burden When Defense Expert Concedes Range of Motion Limitations

 

Keep those cards, letters and emails coming in and remember, we're always here for you.

Dan
Dan D. Kohane
[email protected]

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5/30/06 LLJBJ Partnership v. Commonwealth Land Title

Appellate Division, Second Department

Defects in Title Not Excluded from Coverage in Title Policy

The policy of title insurance obligated the title company to defend the plaintiff and pay its attorney's fees, costs, and expenses in an underlying action because the claimed defect in title arose from the rights of a person whose interest appeared in the chain of title, and who was not specifically excepted from coverage under the terms of the policy. In response to the plaintiff's prima facie showing, the defendant title company failed to raise a triable issue of fact as to whether defects in the chain of title were specifically excluded from coverage under the terms of the title insurance policy.

5/30/06 In the Matter of Continental Insurance Company v. Bautz

Appellate Division, Second Department

Once Again, Insurer Fails to Prove Insured’s Lack of Cooperation -- Carrier Must Demonstrate Diligence in Seeking Insured’s Cooperation and Willful and Avowed Obstruction by the Insured

Continental Insurance Company and Encompass Insurance Company (Continental) issued an automobile insurance policy to Bautz, who was struck by a motor vehicle owned by Ferrufino. Ferrufino was insured by State Farm. State Farm disclaimed coverage to Ferrufino for her alleged failure to cooperate in accordance with the terms of the policy. Bautz filed a demand for UM arbitration against Continental, which commenced this proceeding to stay the arbitration. The Supreme Court denied the petition, finding that State Farm met its burden of proving a lack of cooperation but directed State Farm to defend Ferrufino as a defendant in an action commenced by Bautz (the underlying lawsuit).

The decision does not indicate what State Farm did in its attempt to secure its insured’s cooperation.

An insurance carrier that seeks to disclaim coverage on the ground of lack of cooperation "must demonstrate that it acted diligently in seeking to bring about the insured's co-operation; that the efforts employed by the insurer were reasonably calculated to obtain the insurer's co-operation and that the attitude of the insured, after his co-operation was sought, was one of willful and avowed obstruction. State Farm failed to demonstrate that it met the requirements to disclaim coverage on the ground of lack of cooperation.

5/30/06 New York Central Mutual Fire Insurance Company v. Steely

Appellate Division, Second Department

Question of Fact Whether Injury during Training Was an Occurrence under the Policy; Insured’s Delay in Giving Notice for Four Months – Based on his Belief that He Would Not be Sued – May (or May Not) Be Reasonable Excuse

The personal injury action underlying the instant dispute over insurance coverage arises from an incident in which the plaintiff's insured, Steely, physically struck Masi as the two trained in a gymnasium. Steely maintained that his conduct was the result of a reflex reaction that was triggered when Masi assaulted him. The Appellate Division holds that the Supreme Court correctly determined that there were triable issues of fact as to whether the incident was an "occurrence" covered by the policy, specifically whether the conduct of the insured was negligent, rather than intentional. Further, the Supreme Court correctly determined that there were triable issues of fact as to whether Steely's notice of the altercation to the insurer, nearly four months after the event, was untimely based on his good faith belief that no civil lawsuit would result from his conduct. In light of the foregoing, the plaintiff's motion for summary judgment was properly denied.

5/23/06 242-44 East 77th Street, LLC v. Greater New York Mutual Insurance

Appellate Division, First Department

First Party Claim: “Settling and Cracking” and Negligent Work Exclusions Not a Bar to Coverage

Defective underpinning undertaken in connection with construction being carried out on the adjoining property caused plaintiff's building to settle and shift, resulting in cracking and bulging of certain interior and exterior areas. The insurer disclaimed coverage on the basis of the negligent work and "settling, cracking" exclusions of the policy. The Court holds that the settling or shifting of a building caused by the adjoining owner's improper underpinning and shoring activities does not fall within the exclusion for damage caused by "settling, cracking, shrinking or expansion," which should be limited to damage caused by natural phenomena. The Court also holds that the insurer’s reliance on the Negligent Work exclusion did not bar coverage. It was clear to the Court that the damage to plaintiff's building did not result from faulty, inadequate or defective "[d]esign, specifications, workmanship, repair, construction, renovation, remodeling, grading [or] compaction" on the part of plaintiff or its agents with respect to the described premises. Plaintiff's building was not under construction or repair. Its engineer concluded that the damage sustained was caused by "[p]oorly installed or improperly shored underpinning" to the insured building's foundation due to the adjoining owner's construction, underpinning and shoring activities. The defects in plaintiff's building did not exist prior to the demolition work performed at the adjoining property. Thus, any faulty workmanship that caused plaintiff's building to settle and shift, thereby causing its loss, had nothing to do with negligent or faulty work performed at plaintiff's premises by plaintiff or its contractors, but rather was caused by the work of the adjoining owner's contractors in constructing the adjoining premises.

5/23/06 Royal & Sun Alliance v. New York Central Mutual Insurance Co.

Appellate Division, Second Department

What is a “Private Passenger Auto?”

This was an action declaring that Royal & Sun Alliance was entitled to reimbursement from the New York Central for its costs associated with the defense and settlement of an underlying personal injury action. The Supreme Court properly confirmed the report of the Judicial Hearing Officer (JHO) who was appointed to hear and report on the issue of whether the vehicle owned by the appellant's insured was a "private passenger auto." The JHO's finding that the subject vehicle remained a private passenger auto despite the fact that the insured's son also used it for his volunteer work is supported by the evidence presented at the hearing. Furthermore, since the exclusion upon which the appellant relied in disclaiming coverage did not apply to the use of a "private passenger auto," the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment.

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

5/30/06 Gomez v. Epstein

Appellate Division, Second Department

Case Dismissed as Plaintiff Fails to Rebut Defendant’s Expert Report or Explain Treatment Gap

Defendants established that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmed medical report of the plaintiff's treating physician was not based on a recent examination. The affirmed medical report of the plaintiff's examining orthopedist was insufficient because it failed to address the finding of a radiologist, submitted in support of the defendants' motion, that the condition of the plaintiff's lumbar spine was the result of degeneration. This rendered speculative the orthopedist's opinion that the plaintiff's lumbar spine condition was caused by the subject accident. Moreover, the plaintiff failed to adequately explain a lengthy gap in his treatment between 2001 and when he was last examined in 2005.

5/23/06 Berete v. Ford Motor Credit Company

Appellate Division, First Department

Nonconclusory Affidavits from Defendant’s Experts Insufficient to Dismiss Case

Defendants sustained their initial burden of showing the absence of a triable issue on whether the plaintiff driver had suffered a "serious injury" for No-Fault threshold purposes, and plaintiffs failed to meet the burden that then shifted to them to show triable issues of fact. On the question of "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system," defendants offered nonconclusory affidavits from medical experts who examined the accident victim and found no injury satisfying the statutory terms. Furthermore, plaintiffs failed to offer "some reasonable explanation" for the "cessation of treatment" of an allegedly serious injury, which apparently resumed only so the treating physician could perform an expert evaluation at the request of plaintiffs' counsel.

5/23/06 Brown v. City of New York
Appellate Division, First Department

Unexplained Cessation of Treatment and No Finding of Disability by Plaintiff’s Doctor Earns Dismissal for Defendant

Defendants' expert, an orthopedic surgeon, affirmed that his examination of plaintiff did not disclose any disability and plaintiff failed to provide any reasonable explanation for the undisputed circumstance that he ceased all treatment for his alleged permanent injuries some six months after the accident. The Court holds that this “bare assertion” by plaintiff's expert, who first examined plaintiff nearly four years after the purported accident, that at the time treatment was terminated plaintiff's condition had plateaued and that further treatment was unlikely to be efficacious, was insufficient to counter the inference naturally arising from the cessation of treatment, that any injury sustained by plaintiff as a result of the alleged accident was not "serious".

5/23/06 Bell v. Rameau

Appellate Division, Second Department

Causal Connection of Injuries to Accident by Plaintiff’s Physician Were Speculative

Plaintiff failed to proffer any competent medical evidence that was contemporaneous with the subject accident showing any initial range of motion limitations in his spine. Moreover, the affirmation of the plaintiff's treating physician failed to indicate an awareness of the plaintiff's history of on-the-job injuries that occurred in the three years preceding the subject accident. Therefore, any finding on his part made in his affirmation that the plaintiff's current injuries were causally related to the subject accident was mere speculation. See similar Second Department case in Bycinthe v. Kombos (plaintiff's examining physician failed to address in his affirmation the findings made by the appellants' radiologist that the disc bulge in the plaintiff's lumbar spine was the result of degeneration. Therefore, his conclusion that the plaintiff's injuries were caused by the subject accident was sheer speculation).

5/23/06 Forlong v. Faulton

Appellate Division, Second Department

Defendant’s Failure to Address Findings of Range of Motion Limitations Preserves Plaintiff’s Claim

Defendants failed to demonstrate 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. The defendants failed to demonstrate that the limitation of flexion and extension of the injured plaintiff's lumbar spine, as found by their examining orthopedist, did not evince a serious injury, or was not caused by the accident. In addition, the defendants' examining orthopedist did not compare the recorded range of motion with a normal range of motion.

5/23/06 Smith v. Delcore

Appellate Division, Second Department

Defendant Fails to Meet Burden When Defense Expert Concedes Range of Motion Limitations

The affirmed medical report of the defendant's neurologist conceded the existence of limitations in motion of the plaintiff's lumbar spine. Since the defendant failed to meet his initial burden of establishing a prima facie case, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact.

Audrey’s Angle on No-Fault

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

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

5/30/06 In the Matter of the Arbitration between the Applicant and Respondent

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

Insurer’s Denial of Pilates Not Upheld as Insurer Failed to State That Pilates Was a Non-Covered Expense

Here is the Angle: Aside from the multitude of issues Applicant raised, an issue that stood apart from the rest was a claim for reimbursement for Pilates (an exercise program that focuses on the core postural muscles that help keep the body balanced and are essential to providing support for the spine). Arbitrator McCorry, upon review of the evidence held that Pilates was a form of rehabilitation and subject to reimbursement. More importantly, Arbitrator McCorry rejected the insurer’s argument at the arbitration that Pilates was a noncovered expense under the No-Fault regulations. The reason why the argument was rejected was that the insurer’s denial did not state as a basis that Pilates was a noncovered expense. A valuable lesson from this arbitration decision is to ensure that the no-fault claims adjuster handling the file ensures that all bases for denial are stated.

The Analysis: The Applicant, an attorney acting pro se, sought $111,000.00 in lost wage benefits, reimbursement for a Pilates program, attorneys fees, even though she was pro se, future medical expenses and lost wages, pain and suffering, non-economic damages, and punitive damages.

The Applicant was involved in a May 29, 2004, motor vehicle accident which consisted of her hood opening up while driving down the Thruway damaging her windshield. Applicant was able to pull her car off to the side of the road with no further incident.

The Applicant went to the emergency room later that day complaining of a neck injury. Her pain level was described as a 2/10. Applicant disclosed she was taking neurotin, doxepin, trazopone, and prozac.

It should be noted that the Applicant had a prior motor vehicle accident in 1999 which resulting in anterior cervical discectomy and fusion in 2001. As a result of the 1999 motor vehicle accident the Applicant received Social Security Disability benefits.

The Applicant, as a result of the 1999 accident, treated with Dr. Lifeso who noted that in 1997 she injured her neck while jumping on a trampoline. An MRI of the cervical spine allegedly demonstrated disc bulging at unspecified levels. Thereafter, as a result of the 1999 accident, Applicant sustained neck, shoulder, and back injuries. She advised Dr. Lifeso that she was addicted to pain medication due to those injuries.

Dr. Capicotto treated the Applicant on March 23, 2005, opining that her current condition with regard to her lumbar spine was 100% related to the May 2004 accident. Also, her cervical spine “issue” was weighed heavily related to the May 2004 accident. Further, Dr. Capicotto noted that since May 2004 Applicant was unable to work. Dr. Capicotto also noted that Applicant was working part-time and intending to work full-time. Yet, at the time of the May 2004 accident she was working 40-45 hours per week as opposed to her usual 60 hours per week.

Arbitrator McCorry found that upon review of the photographs of the vehicle after the May 2004 accident coupled with Applicant’s testimony regarding how it occurred did not “in my mind conjure up a ‘crash’ that was 100% responsible for Applicant’s post incident complaints and her inability to work….” Arbitrator McCorry further questioned the extent of the lost wage claim as evidence submitted suggested that Applicant’s income was severely reduced prior to the May 2004 accident.

The Applicant also treated with Dr. Thomas Cowan, whose January 4, 2006, report revealed that Applicant had a complicated history of chronic pain and disability related to the 1999 accident. The Applicant had returned to work from her home but was further functionally limited after the May 2004 accident. Dr. Cowan prescribed Pilates training and massage therapy to permit the Applicant to become more functional.

The insurer conducted two independent medical examinations by Dr. Thomas Pastore and Dr. Thomas Artim. Dr. Pastore concluded, upon his examination of the Applicant, that she sustained an aggravation of preexisting degenerative disc disease as well as aggravation of preexisting possible cervical spine pseudoarthrosis. Dr. Pastore opined that there was no significant acute or permanent injury.

Dr. Artim opined that Applicant’s cervical spine symptoms were 90% related to the May 2004 accident. He further opined that it would take Applicant several months to return to her pre-injury activity level.

Interestingly, Arbitrator McCorry awarded Applicant reimbursement for the Pilates program Dr. Cowan prescribed. The insurer argued that Pilates is not a “covered expense” and not subject to reimbursement under No-Fault. Arbitrator McCorry found:

However under the Medical Expense portion of the policy Section 1, Basic Economic loss (sic) in sub division (sic) (b) it states Medical expense (sic) shall consist of necessary expenses for:

(b) psychiatric, physical and occupational therapy and rehabilitation; (emphasis added)

The literature submitted in support of the Pilate claim certainly described it as rehabilitation, as did the comments of Dr. Cowan.

More importantly, Arbitrator McCorry, relying upon the insurer’s basis for denial, noted that the denial was based upon the results of an independent medical examination and not based upon the claim being a non covered expense.

Arbitrator McCorry also denied future medical expenses noting “arbitrators can only award for ‘incurred expenses.’” In addition, Applicant’s punitive damages claim was denied as there is no provision in the No-Fault regulations for awarding punitive damages.

Finally, turning to the lost wage claim, Arbitrator McCorry held that Applicant was entitled to lost wages based upon the medical evidence, but did not find the amount of hours she worked credible. Instead he awarded the Applicant nearly four months of lost wages at a monthly rate of $659.00 instead of the $4,000.00 she claimed.

5/23/06 In the Matter of the Arbitration between the Applicant and Respondent

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

Eligible Injured Person’s Stroke Which Caused Motor Vehicle Accident and Resulting In Subsequent Emergency Brain Surgery Not Result of Accident.

Here is the Angle: The issue in this case was whether the eligible injured person sustained a stroke as a result of the motor vehicle accident requiring emergency brain surgery or the stroke occurred first causing the accident. Arbitrator McCorry held, despite the surgeon testifying, that the stroke resulted first and caused the accident.

The Analysis: The Applicant, Dr. James Maxwell, who appeared pro se, sought reimbursement for emergency brain surgery he performed on the eligible injured person for herniating brain syndrome due to a right hemispheric massive stroke three days after a motor vehicle accident.

The insurer denied payment of the claim on the basis that the injury was not related to the motor vehicle accident.

Arbitrator McCorry upheld the insurer’s denial. A review of the medical records revealed that the stroke was not related to or caused by the motor vehicle accident. Rather, the medical records revealed that the eligible injured party suffered a stroke while operating his motor vehicle. As a result, he lost control of his motor vehicle and was involved an accident. Also, the records did not indicate that the eligible injured person hit his head as a result of the accident.

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.


5/26/06 Guerrier v. Commerce Insurance Company

Massachusetts Supreme Judicial Court

Insurer May Not Avoid Policy Where Incorrect Information Provided In The Insured’s Application By The Insurer’s Agent.
The court held that where an insured has signed an application in blank and provided truthful information to an insurer’s agent who, in turn, whether by design or negligence, recorded incorrect information on the application forms, the insurer is not permitted by law to avoid the policy.

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

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of
New York.

Newsletter Editor

Scott C. Billman
[email protected]

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Scott C. Billman
Audrey A. Seeley

Fire, First-Party and Subrogation Team

Andrea Schillaci, Team Leader
[email protected]

Jody E. Briandi
Philip M. Gulisano

No-Fault/SUM Arbitration Team

Dan D. Kohane, Team Leader
[email protected]

Audrey A. Seeley

Appellate Team
Scott C. Billman, Team Leader
[email protected]

Dan D. Kohane

Scott M. Duquin

242-44 East 77th Street, LLC v. Greater New York Mutual Insurance Company,

Plaintiff appeals from an order of the Supreme Court, New York County (Helen E. Freedman, J.), entered July 21, 2005, which denied its motion for partial summary judgment on liability and granted defendant's cross motion for summary judgment dismissing the complaint, and from a judgment, same court and Justice, entered September 20, 2005, dismissing the complaint.


Shayne, Dachs, Stanisci, Corker & Sauer, Mineola
(Jonathan A. Dachs and
Norman H. Dachs of
counsel), for appellant.
Speyer & Perlberg, LLP, New York (J. Gregory
Carlock of counsel), for respondent.




SULLIVAN, J. [*2]

This appeal presents the question of whether coverage is afforded under a "Businessowners Special Property Coverage Form" policy issued by defendant covering "direct physical loss of or damage to Covered Property at [plaintiff's building] . . . caused by or resulting from any Covered Cause of Loss." Specifically, as is conceded for purposes of this proceeding, defective underpinning undertaken in connection with construction being carried out on the adjoining property caused plaintiff's building to settle and shift, resulting in cracking and bulging of certain interior and exterior areas. Defendant has denied coverage, prompting this lawsuit for breach of contract.

The policy, hardly a model of clarity or precision, defines the term "Covered Causes of Loss" as "Risks Of Direct Physical Loss unless the loss is: a. Excluded in Section B., Exclusions; or b. Limited in Paragraph A.4., Limitations." The limitations described in A.4. are not germane to the claim at issue. Listed under the "Section B. Exclusions" is "b. Earth Movement," described, inter alia, as "[a]ny earth movement (other than sinkhole collapse), such as an earthquake, landslide, mine subsidence or earth sinking, rising or shifting." In its disclaimer letter, defendant denied plaintiff's claim on the basis of the Earth Movement exclusion. It is a fact, however, that the Earth Movement exclusion had been removed from the policy by the Earthquake endorsement, which added "earthquake" to the Covered Causes of Loss in paragraph A.3. and provided that "[t]he EARTH MOVEMENT EXCLUSION does not apply." Defendant also cited an exclusion for "Other Types of Loss," excepting from coverage any loss caused by "[S]ettling, cracking, shrinking or expansion." Finally, defendant relied upon the "Negligent Work" exclusion.

Plaintiff moved for partial summary judgment on liability, claiming that the damage it sustained resulted from a covered cause of loss. In support of its motion, plaintiff submitted a report from an engineer who found "[c]lear and obvious masonry and wall cracking, settlement and shifting damage . . . prevalent throughout the building," resulting from the foundation's settlement and shifting which, in turn, was caused by the adjoining owner's improper underpinning and shoring activities. The total projected repair costs were $183,200. Plaintiff also demonstrated that the defects complained of did not exist before the demolition work on the adjoining property.

Defendant cross-moved for summary judgment dismissing the complaint, referring to the policy exclusions and arguing that faulty construction, settlement and earth movement are not covered causes of loss. The policy exclusion for "Negligent Work" provided that "[w]e will not pay for loss or damage caused by or resulting from . . . [f]aulty, inadequate or defective
. . . [d]esign, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction . . . of part or all of any property on or off the described premises." This exclusion, however, contained an exception. While the policy provided that defendant would not pay for loss or damage caused by or resulting from negligent work, if such "excluded cause of loss . . . results in a Covered Cause of Loss, [defendant] will pay for the loss or damage caused by that Covered Cause of Loss." Defendant also argued, as noted, that the policy also excluded "Other Types of Loss," which included "loss or damage caused by or resulting from . . . [s]ettling, cracking, shrinking or expansion." [*3]

Supreme Court denied the motion, granted the cross motion and dismissed the complaint, finding that the negligent work and "settling, cracking" exclusions barred recovery under the policy. The court could find no "meaningful difference" between "settling" of a building, which, it held, is excluded from coverage, and the "shifting" of a building, as described by plaintiff's engineer, which is not part of the exclusion. We reverse.

It is well settled that

whenever an insurer wishes to exclude certain coverage from its policy obligations, it must do so "in clear and unmistakable" language. Any such exclusions or exceptions from policy coverage must be specific and clear in order to be enforced. They are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction. Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation. (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984] [citations omitted].)

Plaintiff demonstrated a prima facie case of coverage by showing, pursuant to the policy's terms, "direct physical damage," i.e., the settling and shifting of its building, resulting in cracking and bulging of certain interior and exterior areas "caused by or resulting from [a] [c]overed [c]ause of [l]oss," that is, a "risk[] of [d]irect [p]hysical [l]oss," unless the loss is excluded. To succeed in avoiding coverage, defendant must show that its interpretation of at least one of the two exclusions it asserts, "settling and cracking" and "negligent work," is the only reasonable reading of the exclusion (Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386, 390 [1962]) and that the exclusion applies.

The exclusion for "Other Types of Loss" includes "Settling, cracking, shrinking or expansion," "Wear and tear," "Rust, corrosion, fungus, decay, deterioration . . . or any quality in property that causes it to damage or destroy itself," "Smog," "Nesting or infestation" and loss to personal property caused by "Dampness or dryness of atmosphere" or "Changes in or extremes of temperature," all of which share a common characteristic: they are naturally occurring events. Under the principles of ejusdem generis, a rule of construction, the meaning of a word in a series of words is determined "by the company it keeps" (People v Illardo, 48 NY2d 408, 416 [1979]). In accordance with that rule, "a series of specific words describing things or concepts of a particular sort are used to explain the meaning of a general one in the same series" (Matter of Riefberg, 58 NY2d 134, 141 [1983]; see McKinney's Statutes, § 239 ["words employed in a statute are construed in connection with, and their meaning is ascertained by reference to, the words and phrases with which they are associated"]). Thus, the settling or shifting of a building caused by the adjoining owner's improper underpinning and shoring activities does not fall within the exclusion for damage caused by "settling, cracking, shrinking or expansion," which should be limited to damage caused by natural phenomena.

In any event, the "settling, cracking" exclusion would not apply to damage caused by the [*4]"shifting" of the premises. Contrary to the motion court's conclusion, the words "shifting" and "settling" have different and distinct meanings. The word "settle," in the context of a fixed object such as a building or structure, means "to sink gradually to a lower level: SUBSIDE" (Webster's Third New International Dictionary [1993]). In contrast, "shift" means "a change in place or position" (id.). Had defendant intended to exclude damage caused by "shifting," it should have said so (see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 473 [2005]; MDW Enters. v CNA Ins. Co., 4 AD3d 338, 341 [2004] ["If (the insurers) wanted to exclude coverage for arson they should have said so clearly, and could easily have done so, just as they listed theft and attempted theft separately"]).

Nor is defendant's reliance on the Negligent Work exclusion well taken since it is clear that the damage to plaintiff's building did not result from faulty, inadequate or defective "[d]esign, specifications, workmanship, repair, construction, renovation, remodeling, grading [or] compaction" on the part of plaintiff or its agents with respect to the described premises. Plaintiff's building was not under construction or repair. Its engineer concluded that the damage sustained was caused by "[p]oorly installed or improperly shored underpinning" to the insured building's foundation due to the adjoining owner's construction, underpinning and shoring activities. The defects in plaintiff's building did not exist prior to the demolition work performed at the adjoining property. Thus, any faulty workmanship that caused plaintiff's building to settle and shift, thereby causing its loss, had nothing to do with negligent or faulty work performed at plaintiff's premises by plaintiff or its contractors, but rather was caused by the work of the adjoining owner's contractors in constructing the adjoining premises.

The provision extending the negligent work exclusion to construction or renovation performed to "part or all of any property on or off the described premises" does not, as defendant argues, undermine the conclusion that the negligent work exclusion does not apply to negligent work performed on adjoining property by a third party who is not the insured's agent. The additional words "off the described premises" can be construed to refer to personal property, which, subject to specific exceptions, is covered, or to other buildings located off premises but covered under the policy, such as "Completed additions," "Additions under construction" and "Materials, equipment, supplies and temporary structures, on or within 100 feet of the described premises, used for making additions, alterations or repairs to the buildings or structures." All other references to property in the policy refer to property owned by the insured or under its control. In the absence of language clearly indicating that "property" can include property owned or controlled by a third party, it is unreasonable to construe the language to include such property within the scope of the exclusion.

Where an insurance policy reasonably lends itself to two conflicting interpretations, its terms are ambiguous and must be construed in favor of the insured and against the insurer, the drafter of the policy language (Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326 [1996]; see Breed v Insurance Co. of N. Am., 46 NY2d 351, 357 [1978]). This rule of construction is especially true where, as here, the language at issue appears in an exclusion limiting the insurer's exposure. "[P]olicy exclusions are given a strict and narrow construction, with any ambiguity resolved against the insurer" (Belt Painting Corp. v TIG Ins. Co., 100 NY2d [*5]377, 383 [2003]; see Moneta Dev. Corp. v Generali Ins. Co. of Trieste & Venice, 212 AD2d 428 [1995]).

When parties enter into an "all risk" policy, such as is involved here, covering "direct physical loss of or damage to Covered Property at the premises . . . caused by or resulting from any Covered Cause of Loss," they obviously intend to cover all losses except those specifically excluded. The negligent work exclusion, as one commentator has observed, refers only to work that the insured has contracted for inasmuch as insurers "seek to avoid insuring, or guaranteeing, the quality of the insured's contractual undertakings" (Cozen, Insuring Real Property § 2.04[19][a] [2005]). Since, as the evidence in this record shows, the damage to plaintiff's building was caused by the adjoining owner's improper underpinning and shoring activities, conduct not attributable to the insured plaintiff, the negligent work exclusion should be interpreted to give meaning to the reasonable expectations of the parties. In determining the parties' intent when making an ordinary business contract, our guide has always been "the reasonable expectation and purpose of the ordinary business [person]" (Bird v St. Paul Fire & Mar. Ins. Co. 224 NY 47, 51 [1918], quoted in Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008, 1010 [1992]).

To apply the negligent work exclusion to negligent work performed by persons other than the insured or those acting on its behalf or to work on other than the insured premises would require a strained and irrational interpretation of the exclusion. The exclusion does not refer to external forces generated by the activities of third parties that cause damage to the insured premises. The only reasonable explanation of the negligent work exclusion is that it applies to negligent work by or on behalf of the insured in planning, designing or constructing the insured building, which results in damage to the building.

While there are no reported cases in New York interpreting this exclusion, courts in other jurisdictions have addressed a similar exclusion and reached differing results (see e.g. El Rincon Supportive Servs. Org. v First Nonprofit Mut. Ins. Co., 346 Ill App 3d 96, 803 NE2d 532 [2004] [exclusion applicable to damage due to excavation on adjoining property]; Jussim v Massachusetts Bay Ins. Co., 33 Mass App Ct 235, 597 NE2d 1379 [1992], affd 415 Mass 24, 610 NE2d 954 [1993] [exclusion not applicable to oil spill on adjoining property]). Slaby v Safeco Ins. Co. (972 F2d 1342 [9th Cir 1992]), relied upon by defendant in support of its contention that any negligent work, no matter where or by whom performed, falls within the exclusion, is an unpublished opinion, the citation of which in the 9th Circuit is prohibited (see Conboy v AT&T Corp., 241 F3d 242, 256 n 13 [2d Cir 2001] ["because the opinion is an unpublished disposition, it is not binding even in the Ninth Circuit, let alone here"]). Furthermore, it should be noted that the language in Slaby differs in that there the exclusion specifically applied to faulty, inadequate or defective maintenance of "property whether on or off the insured location' by any person or organization" (1992 US App LEXIS 20618 *6, 1992 WL 207871, *2). In any event, to the extent Slaby can be read to exclude coverage for faulty, inadequate or defective work performed by a third party under the language of the negligent work exclusion at issue, we decline to follow it.

Since, under our analysis, neither of the exclusions asserted apply, plaintiff is entitled to summary judgment on liability. [*6]

Accordingly, the judgment of the Supreme Court, New York County (Helen E. Freedman, J.), entered September 20, 2005, dismissing the complaint and bringing up for review an order, same court and Justice, entered July 21, 2005, which denied plaintiff's motion for partial summary judgment on liability and granted defendant's cross motion for summary judgment dismissing the complaint, should be reversed, on the law, with costs and disbursements, the motion granted, the cross motion denied and the matter remanded for further proceedings. Appeal from the aforesaid order should be dismissed, without costs or disbursements, as subsumed in the appeal from the judgment.

All concur.

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

ENTERED: MAY 23, 2006

CLERK

Berete v. Ford Motor Credit Company

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 9, 2006, which granted defendants' motion and cross motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants sustained their initial burden of showing the absence of a triable issue on whether the plaintiff driver had suffered a "serious injury" for No-Fault threshold purposes (Insurance Law § 5102[d]), and plaintiffs failed to meet the burden that then shifted to them to show triable issues of fact (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). On the question of "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system," defendants offered nonconclusory affidavits from medical experts who examined the accident victim and found no injury satisfying the statutory terms (see e.g. Henkin v Fast Times Taxi, 307 AD2d 814 [2003]; see also Gaddy, 79 NY2d at 956-957). Even were we to find plaintiffs' opposition supported by nonconclusory medical opinion, plaintiffs failed to offer "some reasonable explanation" for the "cessation of treatment" of an allegedly serious injury (see Pommells v Perez, 4 NY3d 566, 574 [2005]), which apparently resumed only so the treating physician could perform an expert evaluation at the request of plaintiffs' counsel. As for the injury under the 90/180-day test, defendants sustained their initial burden and plaintiffs failed to come forward with objective evidence of a medically determined [*2]injury or impairment of a non-permanent nature (see Copeland v Kasalica, 6 AD3d 253 [2004]; Hewan v Callozzo, 223 AD2d 425 [1996]).

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

ENTERED: MAY 23, 2006

CLERK

Brown v. City of New York

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered April 19, 2004, which, inter alia, granted the motion and cross motion by defendants New York City Transit Authority and the City of New York for summary judgment dismissing the complaint on the ground that plaintiff had not sustained "serious injury" within the meaning of Insurance Law
§ 5102(d), unanimously affirmed, without costs.

Defendants' expert, an orthopedic surgeon, affirmed that his examination of plaintiff did not disclose any disability and plaintiff failed to provide any reasonable explanation for the undisputed circumstance that he ceased all treatment for his alleged permanent injuries some six months after the accident (see Pommells v Perez, 4 NY3d 566, 574 [2005]). The bare assertion by plaintiff's expert, who first examined plaintiff nearly four years after the purported accident, that at the time treatment was terminated plaintiff's condition had plateaued and that further treatment was unlikely to be efficacious, was insufficient to counter the inference naturally arising from the cessation of treatment, that any injury sustained by plaintiff as a result of the alleged accident was not "serious" as that term is defined in the statute (see Mullings v Huntwork, __ AD3d __, 810 NYS2d 443 [2006]; Smith v Brito, 23 AD3d 273 [2005]).

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

ENTERED: MAY 23, 2006

CLERK

Bell v. Rameau

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated April 21, 2005, which granted the defendants' 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.

The defendants, in submitting the plaintiff's verified bill of particulars and the affirmed medical report of their examining neurologist, made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Kearse v New York City Tr. Auth., 16 AD3d 45; Collins v Stone, 8 AD3d 321).

The Supreme Court correctly determined that the plaintiff failed to raise a triable issue of fact in opposition to the defendants' motion. The plaintiff failed to proffer any competent medical evidence that was contemporaneous with the subject accident showing any initial range of motion limitations in his spine (see Suk Ching Yeung v Rojas, 18 AD3d 863; Nemchyonok v Peng Liu Ying, 2 AD3d 421; Ifrach v Neiman, 306 AD2d 380). Moreover, the affirmation of the plaintiff's treating physician failed to indicate an awareness of the plaintiff's history of on-the-job injuries that occurred [*2]in the three years preceding the subject accident. Therefore, any finding on his part made in his affirmation that the plaintiff's current injuries were causally related to the subject accident was mere speculation (see Mooney v Edwards, 12 AD3d 424; Allyn v Hanley, 2 AD3d 470; Ginty v MacNamara, 300 AD2d 624).

Furthermore, the plaintiff failed to submit competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).
ADAMS, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.

Bycinthe v. Kombos


In an action to recover damages for personal injuries, the defendants Koulla Kombos and Stavros Modinos appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated December 10, 2004, as denied their motion for 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).

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

Contrary to the plaintiff's contention, the appellants offered a satisfactory explanation for the delay in making their motion for 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) (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648).

On the merits, the appellants made their prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; see also Giraldo v Mandanici, 24 AD3d 419; Kearse v New York City Tr. Auth., 16 AD3d 45). [*2]In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's examining physician, who examined the plaintiff in November 2004, was without probative value in opposition to the appellants' motion since the physician relied upon the unsworn and unaffirmed medical reports of others in coming to his conclusions (see Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266). Furthermore, the plaintiff's examining physician failed to address in his affirmation the findings made by the appellants' radiologist that the disc bulge in the plaintiff's lumbar spine was the result of degeneration. Therefore, his conclusion that the plaintiff's injuries were caused by the subject accident was sheer speculation (see Giraldo v Mandanici, supra; Ifrach v Neiman, 306 AD2d 380; Lorthe v Adeyeye, 306 AD2d 252). The plaintiff relied upon the unaffirmed medical reports of his treating physician, but those too were without probative value in opposing the appellants' motion (see Hernandez v Taub, 19 AD3d 368; Pagano v Kingsbury, 182 AD2d 268). The plaintiff further failed to adequately explain the lengthy gap in treatment between 2001 and when he was examined in 2004 in response to the appellants' motion for summary judgment (see Pommells v Perez, 4 NY3d 566; Batista v Olivo, 17 AD3d 494; Barnes v Cisneros, 15 AD3d 514; Sibrizzi v Davis, 7 AD3d 691).

Furthermore, the plaintiff failed to submit any 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 immediately following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

Forlong v. Faulton


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

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

The Supreme Court properly determined that the defendants did not establish their prima facie entitlement to judgment as a matter of law, as they must do on their motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The defendants failed to demonstrate that the plaintiff Roy Forlong (hereinafter the injured 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 Hussain v Wang, 18 AD3d 816, 817). The defendants failed to demonstrate that the limitation of flexion and extension of the injured plaintiff's lumbar spine, as found by their examining orthopedist, did not evince a serious injury, or was not caused by the accident (see Berkowitz v Decker Transp. Co., 5 AD3d 712, 713; Peplow v Murat, 304 AD2d 633; Onder v Kaminski, 303 AD2d 665, 666). In addition, the defendants' examining [*2]orthopedist did not compare the recorded range of motion with a normal range of motion (see Kennedy v Brown, 23 AD3d 625; Bent v Jackson, 15 AD3d 46, 49). Because the defendants failed to meet their burden, the sufficiency of the plaintiffs' opposition papers need not be considered (see Kennedy v Brown, supra; Berkowitz v Decker Transp. Co., supra; D'Angelo v Guerra, 307 AD2d 306, 307; Ervin v Helfant, 303 AD2d 716).
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

Royal & Sun Alliance v. New York Central Mutual Insurance Co.

In an action for a judgment, inter alia, declaring that the plaintiff Royal & Sun Alliance is entitled to reimbursement from the defendant New York Central Mutual Insurance Company of all costs associated with the defense and settlement of an underlying personal injury action entitled Basso v Felsenburg, commenced in the Supreme Court, Kings County, under Index No. 564/97, the defendant New York Central Mutual Insurance Company appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated June 14, 2005, which granted the plaintiffs' motion to confirm a report of a Judicial Hearing Officer dated February 28, 2004, and for summary judgment declaring that the plaintiff Royal & Sun Alliance is entitled to reimbursement from it of all costs associated with the defense and settlement of the underlying personal injury action.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the plaintiff Royal & Sun Alliance is entitled to reimbursement from the defendant New York Central Mutual Insurance Company of all costs associated with the defense and settlement of the underlying personal injury action.

The Supreme Court properly confirmed the report of the Judicial Hearing Officer [*2](hereinafter the JHO), who was appointed to hear and report on the issue of whether the vehicle owned by the appellant's insured was a "private passenger auto." "Where a referee's findings are supported by the record, the court should confirm the referee's report and adopt the recommendation made therein" (Shen v Shen, 21 AD3d 1078, 1079; see Slater v Links at N. Hills, 262 AD2d 299). The JHO's finding that the subject vehicle remained a private passenger auto despite the fact that the insured's son also used it for his volunteer work is supported by the evidence presented at the hearing, and we decline to disturb it. Furthermore, since the exclusion upon which the appellant relied in disclaiming coverage did not apply to the use of a "private passenger auto," the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment.

Since this is a declaratory judgment action, the Supreme Court should have directed the entry of a judgment making the appropriate declaration in favor of the plaintiffs (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
KRAUSMAN, J.P., LUCIANO, FISHER and DILLON, JJ., concur.

Smith v. Delcore


In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (O'Connell, J.), dated October 3, 2005, which granted the motion of the defendant Ralph P. Delcore 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 costs, the motion is denied, and the complaint is reinstated as against defendant Ralph P. Delcore.

The defendant Ralph P. Delcore (hereinafter the defendant) failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed medical report of the defendant's neurologist conceded the existence of limitations in motion of the plaintiff's lumbar spine. Since the defendant failed to meet his initial burden of establishing a prima facie case, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Rich-Wing v Baboolal, 18 AD3d 726; Lesane v Tejada, 15 AD3d [*2]358; Coscia v 938 Trading Corp., 283 AD2d 538). Accordingly, the Supreme Court erred in granting the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur.

Gomez v. Epstein

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated March 9, 2005, which granted the defendants' 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.

Contrary to the plaintiff's contention, the defendants established, prima facie, 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). The Supreme Court properly determined that the plaintiff's submissions in opposition to the motion failed to raise a triable issue of fact. The affirmed medical report of the plaintiff's treating physician was not based on a recent examination (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). The affirmed medical report of the plaintiff's examining orthopedist was insufficient because it failed to address the finding of a radiologist, submitted in support of the defendants' motion, that the condition of the plaintiff's lumbar spine was the result of degeneration. This rendered speculative the orthopedist's opinion that the plaintiff's lumbar spine condition was caused by the subject accident (see Giraldo v Mandanici, [*2]24 AD3d 419; Lorthe v Adeyeye, 306 AD2d 252; Ginty v MacNamara, 300 AD2d 624). Morever, the plaintiff failed to adequately explain a lengthy gap in his treatment between 2001 and when he was last examined in 2005 (see Pommells v Perez, 4 NY3d 566, 574; Batista v Olivo, supra; Barnes v Cisneros, 15 AD3d 514).

Finally, the plaintiff failed to proffer competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident (see Sainte-Aime v Ho, 274 AD2d 569; Arshad v Gomer, 268 AD2d 450).
FLORIO, J.P., SANTUCCI, MASTRO, RIVERA and COVELLO, JJ., concur

LLJBJ Partnership v. Commonwealth Land Title

In an action to recover damages for breach of a title insurance policy and for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff for attorney's fees, costs, and expenses incurred in prosecuting the instant action and an underlying action entitled Flandorffer v Peter, commenced in the Supreme Court, Suffolk County, under Index No. 26519/02, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated December 13, 2004, as granted those branches of the plaintiff's motion which were for partial summary judgment determining that it is obligated to defend the plaintiff in the underlying action, and to pay attorney's fees, costs, and expenses incurred in that action.

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

The policy of title insurance at issue obligated the defendant title company to defend the plaintiff and pay its attorney's fees, costs, and expenses in an underlying action because the claimed defect in title arose from the rights of a person whose interest appeared in the chain of title, and who was not specifically excepted from coverage under the terms of the policy (see Scaglione v Commonwealth Land Tit. Ins. Co., 303 AD2d 671; Herbil Holding Co. v Commonwealth Land Tit. Ins. Co., 183 AD2d 219, 226-227). In response to the plaintiff's prima facie showing, the defendant title company failed to raise a triable issue of fact as to whether defects in the chain of title were specifically excluded from coverage under the terms of the title insurance policy (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310; Throgs Neck Bagels v GA Ins. Co. of N.Y., 241 AD2d 66). [*2]Accordingly, the Supreme Court properly granted partial summary judgment to the plaintiff, determining that the defendant title company must defend the plaintiff and pay its attorney's fees, costs, and expenses in connection with that action.
SCHMIDT, J.P., KRAUSMAN, MASTRO and COVELLO, JJ., concur.

In the Matter of Continental Insurance Company v. Bautz


In a proceeding to permanently stay arbitration of an uninsured motorist claim, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated June 20, 2005, as, upon, in effect, reargument, adhered to so much of its original determination in an order dated January 25, 2005, as denied the petition, and the additional respondent State Farm Insurance Company cross-appeals, as limited by its brief, from so much of the same order as adhered to so much of the original determination in the order dated January 25, 2005, as directed the defendant State Farm Insurance Company to defend its insured in an underlying personal injury action.

ORDERED that the order dated June 20, 2005, is reversed insofar as appealed from, on the law, the petition is granted, and upon reargument, the arbitration is permanently stayed, and so much of the order dated January 25, 2005, as denied the petition is vacated; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further, [*2]

ORDERED that one bill of costs is awarded to the petitioners payable by State Farm Insurance Company and one bill of costs is awarded to Robert Bautz payable by State Farm Insurance Company.

The petitioners, Continental Insurance Company and Encompass Insurance Company (hereinafter collectively Continental), issued an automobile insurance policy to the respondent Robert Bautz, who was struck by a motor vehicle owned by the additional respondent Norma Ferrufino, which was insured by the additional respondent State Farm Insurance Company (hereinafter State Farm). However, State Farm disclaimed coverage to Ferrufino for her alleged failure to cooperate in accordance with the terms of the policy. Bautz filed a demand for uninsured motorist arbitration against Continental, which commenced the instant proceeding to stay the arbitration. The Supreme Court denied the petition, finding that State Farm met its burden of proving a lack of cooperation yet directed State Farm to defend Ferrufino as a defendant in an action commenced by Bautz and his wife (hereinafter the underlying lawsuit).

An insurance carrier that seeks to disclaim coverage on the ground of lack of cooperation "must demonstrate that it acted diligently in seeking to bring about the insured's co-operation; that the efforts employed by the insurer were reasonably calculated to obtain the insurer's co-operation; and that the attitude of the insured, after his [or her] co-operation was sought, was one of willful and avowed obstruction'" [citations omitted] (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168-169, quoting Coleman v New Amsterdam Cas. Co., 247 NY 271, 276; see New York State Ins. Fund v Merchants Ins. Co. of N.H., 5 AD3d 449, 450; Matter of Metlife Auto & Home v Burgos, 4 AD3d 477).

State Farm failed to demonstrate that it met the requirements set forth in Thrasher to disclaim coverage on the ground of lack of cooperation. Thus, the Supreme Court erred in denying the petition to stay the uninsured motorist arbitration but correctly directed State Farm to defend Ferrufino in the underlying lawsuit.

In light of our determination, the parties' remaining contentions have been rendered academic.
SCHMIDT, J.P., CRANE, RIVERA and SPOLZINO, JJ., concur.

New York Central Mutual Fire Insurance Company v. Steely


In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant in an underlying action entitled Masi v Steely, pending in the United States District Court for the Southern District of New York, under Case No. 04 CV 6087, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Natasi, J.), entered May 16, 2005, as denied the plaintiff's motion for summary judgment on its cause of action for a declaration that it had no duty to defend or indemnify its insured.

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

The personal injury action underlying the instant dispute over insurance coverage arises from an incident in which the plaintiff's insured, the defendant William Steely, physically struck the defendant Garibaldi Masi as the two trained in a gymnasium. Steely maintained that his conduct was the result of a reflex reaction that was triggered when Masi assaulted him. Accordingly, the Supreme Court correctly determined that there were triable issues of fact as to whether the incident was an "occurrence" covered by the relevant insurance policy, specifically whether the conduct of the insured was negligent, rather than intentional (see Seneca Ins. Co. v Naprawa, 294 AD2d 183, 184; Merrimack Mut. Fire Ins. Co. v Carpenter, 224 AD2d 894, 895; cf. Slayko v Security Mut. Ins. Co., 98 NY2d 289). Further, the Supreme Court correctly determined that there [*2]were triable issues of fact as to whether Steely's notice of the altercation to the plaintiff insurer, nearly four months after the event, was untimely based on his good faith belief that no civil lawsuit would result from his conduct (see M.J. Frenzy, LLC v Utica Nat. Ins. Group, 309 AD2d 566). In light of the foregoing, the plaintiff's motion for summary judgment was properly denied.
SCHMIDT, J.P., KRAUSMAN, SPOLZINO and FISHER, JJ., concur.