Coverage Pointers - Volume VIII, No. 12

Dear Coverage Pointers Subscribers:

 

There is so much going on this week, I'm not even sure where to start.  I am back from NYC where I spent a few days attending a meeting for the Lawyers for Civil Justice.  As President of the Federation of Defense & Corporate Counsel, I serve on the Board of Directors of LCJ. 

Lawyers for Civil Justice is a national coalition of defense trial lawyer organizations and corporations which seek to restore and maintain balance in the civil justice system for the benefit of the public.

The purpose of LCJ is to accomplish civil justice reform through:

·        Coalitions among defense trial lawyer associations and corporate interest;

·        Participation in the legislative process in a way that persuasively presents the defense perspective; and

·        Anticipating, tracking and addressing proposals which affect the civil justice system.

For more information about LCJ and the role the defense community plays in fighting for a level playing field for all civil litigants, you can visit its website at www.lfcj.org.

 

Holiday Wishes

 

OK, first things first.  This being our last issue before Chanukah and Christmas let me take a moment to wish you all the best for the season.  Best to you and your family and colleagues for a relaxing and joyous holiday season

 

CP Staff Addition

 

In our most recent edition, we announced that Mark Starosielec had joined our trial and litigation team.  We have awarded him the editorship of the "Serious Injury" column, now known as STarosieleC'S serious (Injury) Side of New York No-FaulT.  We will continue to segregate the scores of No Fault "threshold" cases in that column, for ease of review, with Mark following and discussing the trends.

 

Of course, Audrey "The Queen of No Fault" Seeley will remain as editor of Audrey's Angles and continue to provide her excellent analysis of NF arbitration decisions and related matters.

 

Plans for the New Year - the FDCC Litigation Management College and Graduate Program

 

Here's the last holiday gift you might want to purchase for yourself or someone on staff that you admire: early registration for the FDCC Litigation Management College or Graduate Program.

 

So many of you have attended, or know someone who has attended, the Litigation Management College run by the Federation of Defense & Corporate Counsel.  This year, the 13^th year of production, the LMC will be held at the Emory University Conference Center in Atlanta Georgia on June 17 - 21, 2007.  For those who are graduates or have a significant number of years of claims experience, the FDCC offers the 4^th Annual Graduate Program being held at the same time and in the same facility.

 

These two programs provide fabulous claims training.  Last year's programs were sold out earlier than any in the past and this year will be no different.  There are just over 100 seats open for the LMC and only 25 for the graduate program.  I will be making opening remarks to the students in both programs and will reprise my role as "Captain Coverage" with a presentation on handling complex insurance issues, at the Graduate Program.

 

Early registration for both programs will be available next week and I urge you to sign up immediately, to be sure of a place in the appropriate program.  You can find out more information by going to the FDCC website, www.thefederation.org, or send me an e-mail and I'll put you in touch with the right people. 

 

No Fault Fraud - Message from Audrey to you

 

At a recent meeting with a client the F word was dropped.  No not that one, the other one - FRAUD - particularly in the context of No Fault.  We see it.  You see it.  It is traveling west in New York State.  Provider Fraud is a growing problem in New York City.  No Fault carriers are rightly concerned about patterns and practices that are spreading through out the Empire State.

 

We are your partners in fraud detection and prevention.  We know it is a very real concern in the insurance community.  Among the services we provide for clients is assisting them in not only spotting fraud but battling it.  We do not want insurers to become victims of unscrupulous providers and claimants and have their shareholders and policyholders suffer as a result.  We follow the recent cases and decisions to look for trends in the community.  We also have good relationships with multiple insurers, their in-house counsel and their outside counsel.  It is a practice to pick up the phone and speak with others in the industry about patterns that suggest inappropriate conduct and monitor trends that appear disturbing.  We encourage you to pick up the phone and do what so many of our clients are doing, partner with us to assure that benefits are paid only to legitimate claimants and providers.

 

This Week's Issue

 

Case law?  You want case law?  This week's issue, attached, presents summaries of cases decided by NY appellate courts in the past two weeks, including:

 

• When Can a Declaratory Judgment be Commenced to Resolve Coverage Questions with Respect to Excess Policies?  Split Court Wrestles with Question. 
• Claim by Defendant Against Another Insured's Liability Insurer Dismissed for Lack of Privity 
• Bad Faith and Punitive Damage Case Against No Fault Carrier Dismissed
• Business Interruption Loss in 9/11 World Trade Center Case.  "Necessary Suspension" of Business Means Total Interruption of Business
• "I'll Huff and I'll Puff and ..."  A Near Collapse or an Imminent Collapse or a Likely Collapse is Not a Collapse
• Do it Timely, or Loss the Right.  Late Disclaimer Precludes Carrier from Raising Late Notice and Exclusionary Defenses 
• UM Policy Does Not Cover Insured When in a Vehicle he Owns but Not on Policy 
• If a Car has No Insurance Which Can be Reached in New York, it is Uninsured
• Agent Free from E&O Claim, When Insured Received the Coverage Requested
• Where in the World Can You Sue?  New York Courts Proper Place to Litigate Against Insurance Syndicate.  "Service of Suit" Clause Differs from "Forum Selection" Clause
• We'll Cross that Manhattan Bridge When We Come to It: New York Courts have no Jurisdiction Over Insured in Premium Dispute Case Where New NJ Insured Negotiated with NJ
  Broker and Policy Issued in NJ to Insured that did no Business in New York
• Business Interruption Claim: One Recovery is Enough

STarosieleC'S serious (Injury) Side of New York No-FaulT
Mark Starosielec
[email protected]

 

• Gap in Treatment Explained, Court Reverses Defendant's Grant of Summary Judgment
• Nine (Days) is Not Enough: Plaintiffs Failure to Miss Much Work Undermines Claims and Pommels Applies Where there is a Long Gap in Treatment 
• Defendant's Grant of Summary Judgment Affirmed Except Where there was  Failure to Adequately Address Serious Injury Issue 
• Two Years is Too Late and Bulging Disc isn't Enough 
• Defendant's Doctor's Deficiencies Dashes Desired Dismissal 
• Defendant's Doc Fails to Address Major Claim of Disability 
• Plaintiff's Medical Reports Must be Sworn or Affirmed and Cannot Rely on Unsworn Reports of Others 

Audrey's Angle on No-Fault
Audrey Seeley

[email protected]

 

• Evidence Submission Not Considered But Claim Still Denied Because Applicant Failed To Provide Timely Notice Of Lost Wage Claim.
• Peer Review Report Without Discussion On Accepted Medical Practices Insufficient Basis For Denial.

 

Anyway, with all that, have a great two weeks and we'll see at least once before January 1st.

 

Dan

 

12/14/06          Long Island Lighting Company v. Allianz Underwriters Insurance Co,, et al.
Appellate Division, First Department
When Can a Declaratory Judgment be Commenced to Resolve Coverage Questions with Respect to Excess Policies?  Split Court Wrestles with Question.

The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (CPLR 3001). A declaratory judgment action thus "requires an actual controversy between genuine disputants with a stake in the outcome," and may
not be used as "a vehicle for an advisory opinion."  Where "potential liability" may reach into an excess layer, a declaratory judgment action is timely and appropriate.  The worst case or "highest estimate of damages" may be used to ascertain whether or not a claim is justiciable against a particular excess insurer's policy.  A strongly divided court believed, in this case, that there was only a “slim chance” or “no chance” of the excess layers being reached and would have dismissed the declaratory judgment action at this time,

 

12/14/06          Andrade v. Triborough Bridge & Tunnel Authority et al v. Transcontinental

Appellate Division, First Department
Claim by Defendant Against Another Insured’s Liability Insurer Dismissed for Lack of Privity
Prior to obtaining a judgment against the co-defendant, a defendant cannot bring a claim for declaratory relief against a co-defendant’s insurer without privity of contract, just as an injured plaintiff cannot bring a declaratory judgment action against a defendant’s carrier.

 

12/13/06          Alexander v. Geico Insurance Company.

Appellate Division, Third Department

Bad Faith and Punitive Damage Case Against No Fault Carrier Dismissed
While not impossible, it is very difficult to establish a bad faith and extra contractual claim against a first party carrier in New York.  Here’s another example.  Plaintiff was injured in an automobile accident for which she received no-fault benefits from defendant, her automobile insurance carrier. At some point thereafter, however, defendant refused to cover certain treatments prompting plaintiff to commence this action. In addition to asserting a breach of contract claim against defendant, plaintiff asserted causes of action sounding in bad faith and tort (with a concomitant request for punitive damages).

The appellate court affirmed the dismissal of the bad faith and punitive damage claims. This was, in essence, a breach of contract claim.  With proof of a relationship or duty beyond the contract, no tort claim against the insurer for alleged bad faith in failing to perform its contractual obligations.  To the extent that plaintiff also sought punitive damages in her complaint, such demands were also properly dismissed because there is no basis for determining that defendant's conduct constitutes a tort independent of the contract

 

12/12/06          Broad Street, LLC v. Gulf Insurance Company

Appellate Division, First Department

Business Interruption Loss in 9/11 World Trade Center Case.  “Necessary Suspension” of Business Means Total Interruption of Business

At the core of this dispute was the meaning of the policy term "necessary suspension" under a business interruption policy.  The insured asserted the term should be interpreted to mean the suspension of "normal business activities," whereas defendant submits the term is clear and unambiguous and is triggered only by a total interruption of business operations.  The Court holds that once tenants returned to the building seven days after the disaster, even without complete services available, the business interruption coverage was no longer available. 

 

12/7/06            Rector St. Food Enterprises, Ltd., v. Fire & Cas. Ins. Co. of Connecticut
Appellate Division, First Department

“I’ll Huff and I’ll Puff and ...”  A Near Collapse or an Imminent Collapse or a Likely Collapse is Not a Collapse
The first party policy provide coverage for collapse, defined as "an abrupt falling down or caving in." Policy provided that "[a] building that is standing is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion."  The building in this case was in horrible shape – façade was cracking, building was leaning and might well have collapsed, had the City not declared an emergency and had the building demolished.  “It was going to collapse,” said the insured.  “Public policy would be promoted by providing coverage for demolition before the building collapses and injures someone, said the insured.

 

“Tough,” said the Court.  “Without a statute requiring otherwise and there is no such statute, no collapse, no coverage.”

 

12/7/06            City of New York v. Utica Mutual Insurance Company

Appellate Division, First Department

Do it Timely, or Loss the Right.  Late Disclaimer Precludes Carrier from Raising Late Notice and Exclusionary Defenses

We’ve told you once, we’re telling you again.  Failure to disclaim timely results in liability carrier losing right not only to complain about late notice of accident by insured and additional insured, but also precludes right to raise any policy exclusions as defense to coverage.

 

12/7/06            In the Matter of USAA Casualty Insurance Company v. Hughes

Appellate Division, Second Department
UM Policy Does Not Cover Insured When in a Vehicle he Owns but Not on Policy
Insured operating vehicle he owned but not insured under policy under which he sought UM coverage.  Policy that was supposed to cover that vehicle had been cancelled.  UM endorsement specifically excludes claims for:

 

… bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for at least the minimum bodily injury liability limits and UM limits required by law by the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of this policy."

 

The policy means what it says and no coverage is available for his injuries under those terms.

 

 

12/7/06            In the Matter of Allstate Insurance Company v. Vitiello

Appellate Division, Second Department
If a Car has No Insurance Which Can be Reached in New York, it is Uninsured. 

The offending vehicle was owned by a nonresident.  If it were insured at the time of the subject accident, it was insured by an out-of-state carrier not authorized to transact business in the State of New York and not subject to personal jurisdiction in this State.  Accordingly, the car is considered an "uninsured motor vehicle" within the meaning of Insurance Law.

 

12/7/06            Loevner v. Sullivan & Strauss Agency, Inc
Appellate Division, Second Department
Agent Free from E&O Claim, When Insured Received the Coverage Requested
Absent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage

 

12/5/06            Hudson Insurance Company v. M.J. Oppenheim

Appellate Division, First Department

Where in the World Can You Sue?  New York Courts Proper Place to Litigate Against Insurance Syndicate.  “Service of Suit” Clause Differs from “Forum Selection” Clause
Defendant, served with process as the representative of an insurer syndicate that subscribed to a fidelity bond that is part of a comprehensive insurance policy, is subject to jurisdiction in New York as a result of his principals having insured the loss of a New York resident namely, plaintiff Hudson, a subsidiary of plaintiff Fairfax. Although the policy was purchased by Fairfax, a Canadian corporation, it defines "Assured" to include Fairfax's subsidiaries. The bond applies to losses “anywhere in the world.”  Even though the policy contained a “service of suit” clause that allowed service of process in Canada, there were no restrictions in the policy which required the litigation to take place in Canada.

 

12/5/06            Markel Insurance Co., v. GFM Construction, Inc.
Appellate Division, First Department
We’ll Cross that Manhattan Bridge When We Come to It: New York Courts have no Jurisdiction Over Insured in Premium Dispute Case Where New NJ Insured Negotiated with NJ Broker and Policy Issued in NJ to Insured that did no Business in New York

Plaintiff Markel Insurance Company (Markel), is located in New York, and is authorized to issue insurance in New York and New Jersey. Defendant GFM Construction, Inc. (GFM) is a New Jersey close corporation, a construction company located in Lyndhurst, New Jersey and does all is construction work in New Jersey. GFM worked through a NJ insurance broker and that broker purchased the policy through a NY broker.  In an action by Markel against GFM to recover insurance premiums, Markel established owed premiums and was awarded a money judgment. However, Appellate Division reverses and throws out award.  It found that GFM had no contact with New York – the purchase of the policy, the payment of premiums, the meeting with the brokers, all took place in New Jersey.  Accordingly, Markel would have to sue GFM in New Jersey, rather than New York.

12/5/06            J & R Electronics Inc. v. One Beacon Insurance Co
Appellate Division, First Department
Business Interruption Claim: One Recovery is Enough
Business Interruption insurer properly deducted a payment already made to the insured for its damaged merchandise at the selling price.  Otherwise, plaintiff would have received a double recovery for the goods. Plaintiff's argument that the payment for the merchandise should not have been deducted at selling price because it was not received in the ordinary course of business, and that the lack of normal cash flow resulted in the loss of business opportunities, is essentially a request for consequential damages, which were not recoverable under the policy.

 

STarosieleC’S serious (Injury) Side of New York No-FaulT
Mark Starosielec
[email protected]

12/14/06          Wadford v. Gruz

Appellate Division, First Department

Gap in Treatment Explained, Court Reverses Defendant's Grant of Summary Judgment

The First Department held defendants' examining physician failed to meet the initial burden of presenting competent evidence that there is no cause of action. Specifically, defendants' physician failed to address plaintiff's objective tests that were indicative of a serious injury (see Offman v. Singh, 27 A.D.3d 285 (2006)). Also, plaintiff's treating physician first examined patient one week after the accident indicating neck and back herniations as well as EMG tests revealing radiculopathies. Both MRI and EMG reports documenting these objective tests were annexed and authenticated. Finally, while there was a gap in plaintiff's treatment, it was explained. Plaintiff stated that no-fault stopped her benefits and she thereafter discontinued therapy. (cf Pommels v. Perez, 4 N.Y.3d 566 (2005)). Evidence suggests she may have continued treatment through her private health insurer.

 

12/05/06          Hasner v. Budnik

Appellate Division, Second Department

Nine (Days) is Not Enough: Plaintiffs Failure to Miss Much Work Undermines Claims and Pommels Applies Where there is a Long Gap in Treatment

Court grants defendants’ motion for summary judgment dismissing plaintiff’s complaint for failure to show a serious injury within the meaning of Insurance Law § 5102(d). Plaintiffs experienced only various sprains and strains which had since resolved. Additionally, both plaintiffs each missed less than 10 days of work in the year following the accident, which undermined their claims that their injuries prevented them from performing substantially all of the material acts constituting their customary daily activities during at least 90 out of the first 180 days following the accident.  In addition, a 4½ year gap in treatment was not excused and Pommels precedent mandates dismissal.

 

12/05/06          Lopez v Geraldino

Appellate Division, Second Department

Defendant’s Grant of Summary Judgment Affirmed Except Where there was Failure to Adequately Address Serious Injury Issue

Plaintiff’s appeal of lower court’s order is denied as plaintiff failed to raise a triable issue of fact. Through competent expert evidence, defendants did show that the plaintiff did not sustain a “permanent loss of use of a body organ, member, function or system[, a] permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system” within the meaning of Insurance Law §5102(d). As such, that branch of defendant’s motion was properly granted. Conversely, defendants did not adequately address that category of serious injury in their motion papers and, therefore, failed to establish their prima facie entitlement to summary judgment as to that claim. Lower court erred in granting that branch of defendant’s motion.

 

12/05/06          Mejia v. DeRose

Appellate Division, Second Department

Two Years is Too Late and Bulging Disc isn’t Enough

Defendant’s motion for summary judgment is affirmed as court ruled that plaintiff’s evidence was insufficient to establish he sustained a serious injury. Besides producing uncertified medical records, plaintiff’s evidence was also insufficient because treating physician’s affirmation was dated two years after the medical examinations took place. Further, MRI report alone does not establish a serious injury in the plaintiff’s lumbar spine. The mere existence of a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.

 

12/05/06          Mirochnik v Ostrovskiy

Appellate Division, Second Department

Defendant’s Doctor’s Deficiencies Dashes Desired Dismissal

The Supreme Court’s denial of defendant’s motion for summary judgment is affirmed because defendant failed to meet his prima facie burden. Defendant’s examining orthopedist did report on the plaintiff's range of motion testing. He noted that the plaintiff was able to, in the lumbar region of her spine, flex to 90 degrees, extend to 20 degrees, right and left laterally bend to 30 degrees and right and left rotate to 40 degrees. While he set forth these findings, what proved fatal was his failure to compare these findings to the normal range of motion. analysis

 

12/05/06          Nakanishi v Sadaqat

Appellate Division, Second Department

Defendant’s Doc Fails to Address Major Claim of Disability

Second Department affirmed lower court’s denial of defendant’s summary judgment motion. Defendant’s affirmed medical report never addressed one of the major allegations contained in plaintiff’s bill of particulars. Defendant’s neurologist failed to respond to plaintiff’s allegation that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident.

 

12/05/06          Nkhereanye v Hillaire

Appellate Division, Second Department

Plaintiff’s Medical Reports Must be Sworn or Affirmed and Cannot Rely on Unsworn Reports of Others

Defendant’s motion for summary judgment was granted by Second Department. The Court stated plaintiff failed to raise a triable issue of fact because most of plaintiff’s medical submissions were without probative value because they were unsworn or unaffirmed. Even plaintiff’s affirmed medical report by plaintiff’s orthopedist lacked probative value because it relied on the unsworn reports of others.

 

 

Audrey’s Angle on No-Fault

 

This feature seeks to provide our subscribers with highlights of recent notable no-fault arbitration awards and cases as well as insurance department opinions. 

 

We also encourage you to submit no-fault awards that you feel are recent and notable, including Master Arbitration awards. 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.

 

12/7/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Veronica K. O’Connor, Esq. (Erie County)                   

Evidence Submission Not Considered But Claim Still Denied Because Applicant Failed To Provide Timely Notice Of Lost Wage Claim.

 

Here is the Angle:  The insurer’s evidence submission was late and not considered.  However, the lost wage claim was denied based upon the Applicant submitting much of the same evidence as the insurer.  More importantly, the Applicant did not provide notice to the insurer of his significant ($144,000) lost wage claim until approximately 13 months later without any reasonable justification for the untimely notice.  Keep in mind that the Old Regulation 68 applied here.

 

The Analysis:  The Applicant, eligible injured person, sought lost wages as a result of an October 5, 2001, motor vehicle accident in the amount of $144,000.  The insurer denied the claim for benefits on the grounds that the Applicant provided late proof of claim, lack of supporting medical evidence, and upon the insurer’s independent medical examination.

 

Immediately, Arbitrator O’Connor held that the insurer’s evidence submission was marked late and would not receive any consideration.

 

The Applicant, as a result of the accident, was diagnosed with post-concussive syndrome.  He claimed to have been rendered unconscious for 15 minutes after the accident occurred.  A CT scan of his head was normal.

 

The Applicant was employed as a psychiatrist in a full-time private practice.  He claimed as a result of this accident he was unable to maintain his practice and incurred a substantial amount of lost earnings from April 2, 2002 until October 4, 2004.

 

Interestingly, it appears as though the Applicant submitted the insurer’s independent medical examination (“IME”) in its submission as Arbitrator O’Connor reviewed and considered it.  The Applicant underwent a January 6, 2002, neurological IME with Dr. Reza Samie.  Dr. Samie concluded that the Applicant had a normal neurological examination with subjective complaints of pain that could be indicative of a mild concussion.  The injury was causally related to the accident.  Dr. Samie did not recommend further diagnostic studies as it was expected that the Applicant’s symptoms would gradually improve.  Dr. Samie further opined that the Applicant could return to work and perform his normal activities of living without help.

 

It is speculated that the insurer denied neurological benefits based upon Dr. Samie’s IME report but there was no denial to review.  The Applicant also argued that the insurer relied upon the same report to deny lost wages.

 

Yet, the insurer’s February 28, 2002, denial stated that lost wages were denied on the basis that the disability letter the Applicant’s treating physician submitted indicated he could return to work on a full time basis on March 4, 2002.  The treating physician’s report was also submitted and considered.  Dr. M.S. Megahed, the Applicant’s treating neurologist, opined in a February 19, 2002, report that the Applicant had a total recovery of his memory.  The Applicant was permitted to return to driving and to return to work at full capacity as of March 4, 2002.

 

The Applicant testified that while he returned to work in March 2002, his injuries forced him to work on a limited basis.

 

The Applicant’s counsel sent correspondence to the insurer requesting reimbursement for lost wages from April 1, 2002 through the present and continuing into the future as well as enclosing Dr. Megahead’s January 3, 2003, and Dr. Ignatius’ December 27, 2002, disability notes.  Dr. Ignatius’ disability note stated that the Applicant still had dizziness secondary to post concussion syndrome.  The Applicant would never be able to work full time and should be allowed to work part-time.  Dr. Megahead’s disability note stated that he re-evaluated the Applicant on December 10, 2002.  The Applicant had a poor prognosis and could only work part-time.

 

The insurer responded by issuing a denial to the Applicant on the ground that the Applicant failed to notify the insurer of a lost wage claim from a full-time basis to a part-time basis within a reasonable and practicable length of time.  The insurer was not notified of the lost wage claim until well over one year after the accident.  Also, the insurer denied the lost wage claim on the ground that the medical records did not support the inability to work part-time permanently.

 

Arbitrator O’Connor upheld the insurer’s aforementioned denial for lost wages based upon late proof of claim for lost wages.  Since this was a 2001 motor vehicle accident, Old Regulation 68 applied.  Under Old Regulation 68 the eligible injured person or that person’s representative must submit written proof of claim for lost wage benefits to the insurer as soon as reasonably practicable.  However, that time limitation may be excused if the eligible injured person or its representative submits written proof that it was impossible to comply with the time limitation due to specific circumstances beyond the person’s control.

 

The Applicant argued that the insurer’s denial was defective because it failed to apprise the Applicant that the untimely notice may be excused if the Applicant provides reasonable justification of the failure to give timely notice.

 

The Applicant’s argument was rejected since Old Regulation 68 does not contain that requirement.  That requirement is part of New Regulation 68 (11 NYCRR §65-3.3(e)).

 

Further, the Applicant did not dispute that he submitted his lost wage claim approximately 13 months after February 28, 2002, denial which was not as soon as reasonably practicable under Old Regulation 68.  Also, the Applicant failed to submit any evidence that it was impossible to comply with the time limitation due to specific circumstances beyond the person’s control.

 

12/7/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Veronica K. O’Connor, Esq. (Erie County)                   

Peer Review Report Without Discussion On Accepted Medical Practices Insufficient Basis For Denial.

 

Here is the Angle:  Here, the peer reviewer’s report recommended no reimbursement for a cervical spine MRI.  The report’s summary in the arbitration award reveals that the peer reviewer’s report contained no discussion or opinion as to how the MRI deviated from the generally accepted medical/professional practice.  Many times we see the peer reviewer reference journals on the issue of timing of an MRI or when an MRI is appropriate.  This decision makes clear, relying upon downstate case law, that the opinion alone without adequate support is an insufficient basis to deny the claim.

 

The Analysis:  The Applicant, eligible injured person, was involved in an August 23, 2005, motor vehicle accident.  She presented at a local emergency room complaining of neck and facial pain.  The Applicant was diagnosed with a nasal fracture and referred for physiatric evaluation with Dr. Andrew Matteliano.  Dr. Matteliano recommended physical therapy and a cervical spine MRI.

 

On January 4, 2006, Dr. Lawrence Rand conducted the cervical spine MRI which revealed mild posterior spondylosis at C3/C4, C4/C5, and C6/C7 and minimal annular bulges at C3/C4 and C4/C5.

 

On January 23, 2006, the Applicant followed up with Dr. Matteliano indicated that the cervical spine MRI was medically necessary to rule out radiculopathy and diagnose the Applicant’s cervical condition.  It was noted in the decision that the Applicant initially could not undergo the MRI due to pregnancy but miscarried and eventually underwent the MRI.

 

On February 21, 2006, Christopher Burrei, D.O. conducted a peer review of the MRI to ascertain if it was medically necessary.  Mr. Burrei concluded that the MRI was not medically necessary as Dr. Matteliano’s September 12, 2005, examination did not indicate evidence of a spinal cord injury or significant neurological deficiency in the cervical spine region.  On March 7, 2006, the insurer denied payment for the cervical spine MRI. 

 

Arbitrator O’Connor declined to uphold the insurer’s denial.  She reasoned that an insurer defending its denial on the basis that the services provided were not medically necessary must show that the services were inconsistent with generally accepted medical practice.  The insurer’s expert opinion alone is insufficient to meet that burden.  CityWide Social Work & Psychological Servs. v. Travelers Indem. Co., 3 Misc3d 608 (Civ. Ct. Kings Cty. 2004).  Further, courts will not second guess a treating physician’s decision that a medical test is necessary for his diagnosis and treatment which is not inconsistent with generally accepted medical practices when the only support for the denial is a peer review performed by a doctor who did not examine the patient.  Alliance Med. Office, P.C. v. Allstate Ins. Co., 196 Misc2d 268 (Civ. Ct. Kings Cty. 2005).

 

Dr. Burrei’s report failed to adequately support the conclusions he set forth in his peer review report.  Therefore, the denial could not be upheld.

.

 

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.

 

 

12/11/06          Filip v. Block and 1^st Choice Insurance Agency
Indiana Court of Appeals

Agent May or May Not Have Breached Duty to Advise Insured in Procurement of Insurance Coverage
Purchasers of apartment units were advised that previous owner insured the apartments with Auto Owners Insurance Company, and that the insurance was handled by Block, an insurance agent for first choice. When purchasers met with Block, they advised her that they wanted to continue the same coverage. After purchasers made improvements to the property, purchasers notified Block that they wanted to increase their coverage limits from $250,000.00 to $350,000.00. Five years after the purchase, a fire destroyed the apartments. Plaintiffs (purchasers) contended, among other things that defendants were negligent on the selection of adequate insurance. The trial court granted defendants' motion for summary judgment. The Court of Appeals found that Block was negligent in failing to procure the insurance requested by plaintiffs, but because there was evidence that plaintiffs were well-versed insurance procurers who failed to read the insurance policy, the Court found that there was a genuine issue of material fact was to whether plaintiffs reasonably relied on Block's representations when procuring their insurance policy. Therefore, the decision of the trial court was reversed and remanded.
Submitted by: Roland M. Franklin (Sowell Gray Stepp & Laffitte) - Posted: 12/13/2006

11/29/2006      Duncan v. USAA
Supreme Court of Louisiana
Blank Line for Policy No. Results in Ineffective UM Waiver
The Court affirmed the ruling of the district court granting the plaintiff's motion for summary judgment on the effective waiver of UM coverage. The Court held that the blank for the policy number contained on the insurance commissioner's form be filled in to effectuate a valid UM waiver
Submitted by: Debra Herron (McNeer Highland McMunn and Varner, L.C.) - Posted: 11/30/2006

 

CASES IN FULL TEXT

 

Hudson Insurance Company v. M.J. Oppenheim, etc.

Pattison & Flannery, New York (Thomas R. Pattison of counsel), for appellant.
Katten Muchin Rosenman LLP, New York (Michael I. Verde of counsel), for respondents.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 11, 2006, which denied defendant's motion to dismiss for lack of personal jurisdiction or on the ground of forum non conveniens, unanimously affirmed, with costs.

Defendant, served with process as the representative of an insurer syndicate that subscribed to a fidelity bond that is part of a comprehensive insurance policy, is subject to jurisdiction in New York as a result of his principals having insured the loss of a New York resident (CPLR 302[a][1]), namely, plaintiff Hudson, a subsidiary of plaintiff Fairfax. Although the policy was purchased by Fairfax, a Canadian corporation, it defines "Assured" to include Fairfax's subsidiaries. Due process is not offended since the bond applies to losses "anywhere in the world," so the insurers should have reasonably expected to defend an action in New York. There being jurisdiction under CPLR 302(a)(1), it is immaterial whether there is also jurisdiction under CPLR 301 or CPLR 302(a)(2) and (3); whether defendant represents all of the subscribing insurers, an issue, we note, that defendant improperly raised for the first time in his reply (see Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]); whether the permissive service of suit clause, allowing service on defendant in Canada, is void as against public policy, an issue, we note, that defendant improperly raised for the first time on appeal (see Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1988]); and what effect, if any, such clause has on jurisdiction, although we do note that the clause purports merely to provide a method for due process notice, and not a basis for jurisdiction (see Keane v Kamin, 94 NY2d 263, 265 [1999]).

Defendant fails to carry his "heavy" burden of challenging plaintiffs' selection of forum (see Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]; Sweeney v Hertz Corp., 250 AD2d 385 [1998] [plaintiff's choice of forum should not be disturbed absent a balancing of factors "strongly favoring" defendant]). There is a sufficient nexus with this jurisdiction, namely, a loss suffered by Hudson. There is no claim of hardship to either witnesses or to defendant, plaintiffs aptly questioning how it would be more convenient for London entities to litigate in Canada, and the motion court aptly questioning the fairness of expressly insuring plaintiffs' interests "all over the world" while at the same time attempting to restrict litigation to a Canadian forum without an effective forum selection clause. There is no undue burden on our courts, which routinely adjudicate commercial disputes of this nature (see Georgia-Pac. Corp. v Multimark's Intl., Ltd., 265 AD2d 109, 112 [2000]). Under the circumstances, the availability of a forum in Canada is of no consequence.

J & R Electronics Inc.,v. One Beacon Insurance Co

Weg and Myers, P.C., New York (Joshua L. Mallin of counsel), for appellant.
Speyer & Perlberg, LLP, Melville (Jacqueline Rappel of counsel), for respondent.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 19, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

When calculating plaintiff's actual loss of business income as provided under the Business Interruption clause of the insurance policy, defendant properly deducted a payment already made to plaintiff for its damaged merchandise at the selling price. Plaintiff would otherwise have received a double recovery for these goods. Plaintiff's argument that the payment for the merchandise should not have been deducted at selling price because it was not received in the ordinary course of business, and that the lack of normal cash flow resulted in the loss of business opportunities, is essentially a request for consequential damages, which were not recoverable under the policy (see Brody Truck Rental v Country Wide Ins. Co., 277 AD2d 125 [2000], lv dismissed 96 NY2d 854 [2001]).

We have considered plaintiff's remaining contentions, including its request for additional discovery, and find them unavailing.

Markel Insurance Co., v. GFM Construction, Inc.

Morris J. Levin, Paramus, NJ, for appellant.
Soffer & Rech, LLP, New York (Michael A. Borg of counsel), for respondent.

Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered August 31, 2005, which granted plaintiff's motion for summary judgment, and adjudged defendant liable to plaintiff in the amount of $38,356.37, unanimously reversed, on the law, with costs, plaintiff's motion denied and defendant's cross motion to dismiss the complaint granted. The Clerk is directed to enter an amended judgment accordingly.

Plaintiff Markel Insurance Company (Markel), is located in New York, and is authorized to issue insurance in New York and New Jersey. Defendant GFM Construction, Inc. (GFM) is a New Jersey close corporation located in Lyndhurst, New Jersey. George Meisha, the president and sole stockholder of GFM, established the construction company in 1997. Its work includes excavation projects, tunneling, underground work, line stripping, paving, and bridge work — all in New Jersey.

In 2001, GFM contacted The Turner Group, a New Jersey insurance broker, to secure a number of different types of insurance. Turner, in turn, obtained the general liability policy at issue from Markel, through another insurance broker, Hartan Brokerage. Hartan is located in New York. The subject policy was in effect from February 5, 2001 to February 5, 2002.

Plaintiff brought this action in New York County to collect a premium of $28,583.00. GFM denied that it owed the claimed amount. It asserted three affirmative defenses: (1) that plaintiff failed to state a claim; (2) that the Court lacked jurisdiction over it; and (3) that plaintiff misrepresented the basis for computing the premium.

Plaintiff moved for summary judgment. It annexed the policy, and described the formula used to calculate the premium claimed due. Plaintiff also argued, without elaboration, that defendant's affirmative defenses were either unsubstantiated or waived. Defendant opposed the motion, and cross-moved to dismiss the complaint. Defendant asserted that GFM never did business in New York, that GFM never dealt with Hartan Brokerage, and that the subject policy was procured through Turner, GFM's broker in New Jersey. GFM's counsel affirmed that:

"[u]pon information and belief, Turner did not go into New York to meet with Hartan in connection with the acquisition of this policy, but, in fact, Hartan periodically sent a representative to New Jersey to conduct business with Turner in New Jersey."

Defendant also disputed plaintiff's calculation of the premium.

The IAS Court found that New York has long-arm jurisdiction over GFM pursuant to CPLR 302. It held plaintiff was entitled to the premium based upon the unambiguous language of the insurance policy, and it rejected defendant's claims of fraud. We reverse, and dismiss the complaint.

Constitutional due process requires that a court have personal jurisdiction over the parties before it, or that those parties have had a "presence" in a given state for purposes of the litigated issues. With the evolution of national markets for commercial trade and advancements in technology, the concept of a presence has become difficult to discern. Recognizing this fact, the United States Supreme Court has issued a number of decisions, holding that:

"So long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not present' in that State (see McGee v International Life Ins. Co., 355 US 220, 222-223; see also Burger King v Rudzewicz, 471 US 462; World-Wide Volkswagen Corp. v Woodson, 444 US 286, 292; International Shoe Co. v Washington, 326 US 310)" (Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]).

CPLR 302, New York's long-arm statute was enacted in response to the Supreme Court's "minimum contacts" jurisprudence. Section 302(a)(1), applicable here, provides that New York courts have jurisdiction over any defendant who "transacts any business within the state, or contracts anywhere to supply goods or services in the state."

Here, it is plain that GFM's actions are insufficient to confer personal jurisdiction over it (Johnson v Ward, 4 NY3d 516 [2005]; Presidential Realty v Michael Sq. W., Ltd., 44 NY2d 672 [1978]; Bill-Jay Mach. Tool Corp. v Koster Indus., Inc., 29 AD3d 504 [2006]; Trusdell v Donaldson, Lufkin & Jenrette Secs. Corp., 281 AD2d 334 [2001], lv denied 97 NY2d 602 [2001]). GFM is a New Jersey corporation. All of the acts regarding the execution of the insurance policy, the premium of which is at issue here, took place in New Jersey. While Hartan is a New York corporation, its connection to GFM is incidental. Hartan dealt with GFM only through Turner, the New Jersey insurance broker representing the construction company. The record reveals that Hartan's representatives met with Turner, at Turner's New Jersey offices, to conduct negotiations regarding the subject policy. In addition, all of the risks insured by Markel's policy with GFM are located in New Jersey. Both CPLR 302(a)(1) and due process require that this action be dismissed.

City of New York v. Utica Mutual Insurance Company

Newman Fitch Altheim Myers, P.C., New York (Howard B. Altman of counsel), for appellants.
Camacho Mauro Mulholland, LLP, New York (Kathleen M. Mulholland of counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered December 6, 2005, which, in this action seeking declaratory relief, granted plaintiffs' motion for summary judgment only to the extent of declaring that defendant Utica Mutual Insurance Company (Utica) is precluded from asserting a late notice of claim defense, unanimously modified, on the law, to grant plaintiffs' motion to the further extent of declaring that Utica is precluded from disclaiming based on any policy exclusion, and otherwise affirmed, without costs.

Plaintiffs City of New York, New York City Health and Hospitals Corporation, and Bovis Lend Lease LMB, defendants in the underlying personal injury action, together with their insurer, National Union Fire Insurance Company of Pittsburgh, PA, seek a declaration that defendant insurer must defend and indemnify the personal injury action defendants. Plaintiffs' argument that defendant is collaterally estopped from litigating whether it is obligated to defend and indemnify plaintiffs was properly rejected by the motion court, since the prior determination relied upon by plaintiffs involved litigants, property conditions and alleged injury-producing events different from those in the underlying action.

The motion court also properly determined that Utica's disclaimer of insurance coverage was untimely, as a matter of law (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 69 [2003]). However, it erred in precluding Utica only from asserting a late notice defense. Utica's failure to give timely notice to plaintiffs also precludes it from disclaiming based on any policy exclusion, including, of course, that premised upon "acts of the additional insured" (see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028 [1979]).

Rector St. Food Enterprises, Ltd., v. Fire & Casualty Insurance Company of Connecticut

Wilkofsky, Friedman, Karel & Cummins, New York (David B. Karel of counsel), for appellant.
Gennet, Kallmann, Antin & Robinson, P.C., New York (Michael S. Leavy of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered October 3, 2005, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs.

The subject policy specifically defined its additional coverage for collapse with respect to buildings as meaning "an abrupt falling down or caving in" and provided that "[a] building that is standing is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion."

Here, the trial evidence demonstrated that plaintiff insured's building was shown to have had two- to three-inch-wide cracks in its facade and was sinking, out of plumb, and leaning; however, it was indisputably standing in the hours before its demolition by its owner after the City declared an immediate emergency and requested that the above-described condition be made safe either by demolition, repair, sealing or by whatever means necessary to protect the public safety (see Graffeo v United States Fid. & Guar. Co., 20 AD2d 643 [1964], lv dismissed 14 NY2d 685 [1964]). Accordingly, even though the building required demolition, the event resulting in the loss was not covered by the provision of defendant insurer's policy insuring against loss attributable to "abrupt" collapse (cf. Weiss v Home Ins. Co., 9 AD2d 598 [1959]).

The policy language is unambiguous and, absent any showing of a statutory requirement to that effect, plaintiff's argument that public policy mandates that insurers who provide coverage for collapse must be required to also cover imminent collapse is without merit (cf. American Home Assur. Co. v Employers Mut. of Wausau, 77 AD2d 421, 429 [1980], affd for reasons stated in op of Sullivan, J. at App Div 54 NY2d 874 [1981]). Plaintiff's additional argument that the actual definition of collapse in the subject policy violates the public policy of promoting public safety by encouraging property owners to risk serious injury or death or greater property damage in order to ensure that coverage will attach is likewise unpersuasive.

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

Loevner v. Sullivan & Strauss Agency, Inc.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Maureen E. O'Connor of counsel), for appellant-respondent.
Lustig & Brown, LLP, New York, N.Y. (Jeffrey Lesser of counsel), for respondent-appellant.
Glynn and Mercep, LLP, Stony Brook, N.Y. (Bradley C. Abbott of counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant The Whitmore Group Ltd., s/h/a The Whitman Group, Ltd., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), entered November 1, 2005, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendant Sullivan & Strauss Agency, Inc., cross-appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs, and the motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendants are granted.

An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time or to inform the client of the inability to do so (see Murphy v Kuhn, 90 NY2d 266, 270; Tappan Wire & Cable v County of Rockland, 305 AD2d 665, 666; Reilly v Progressive Ins. Co., 288 AD2d 365, 365; Storybook Farms v Ruchman Assoc., 284 AD2d 450, 450; Chaim v Benedict, 216 AD2d 347, 347). Thus, the duty is defined by the nature of the client's request (see Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737; Empire Indus. Corp. v Insurance Cos. of N. Am., 226 AD2d 580, 581; Wied v New York Cent. Mut. Fire Ins. Co., 208 AD2d 1132, 1133). Absent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage (see Murphy v Kuhn, supra at 270-271; Duratech Indus. v Continental Ins. Co., 21 AD3d 342, 345; Reilly v Progressive Ins. Co., supra at 366; Hesse v Speece, 278 AD2d 368, 369; Chaim v Benedict, supra at 347).

Here, the defendant The Whitmore Group Ltd., s/h/a The Whitman Group, Ltd. (hereinafter Whitmore), demonstrated its prima facie entitlement to summary judgment by presenting evidence demonstrating that it procured the specific insurance coverage requested by the plaintiff, namely, an umbrella policy (see Empire Indus. Corp. v Insurance Cos. of N. Am., supra at 581). Moreover, even assuming the existence of a special relationship between the plaintiff and Whitmore, there is no basis for a finding that Whitmore breached a continuing duty to advise the plaintiff to obtain additional insurance coverage sufficient to close a gap in coverage between a boat insurance policy he purchased from the defendant Sullivan & Strauss Agency, Inc. (hereinafter Sullivan), and the umbrella policy he obtained through Whitmore. Although the plaintiff requested that Whitmore provide a quote for insurance covering a boat he was contemplating purchasing, the plaintiff did not advise Whitmore when he purchased the boat, did not request coverage for the boat, and did not even inform Whitmore he had obtained coverage elsewhere prior to the inception of a negligence action against him arising out of an accident on the boat. Furthermore, the plaintiff is conclusively presumed to have read and assented to the terms of the umbrella policy, which expressly indicated that third-party liability claims relating to a boat were subject to a $300,000 deductible (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377; Brownstein v Travelers Cos., 235 AD2d 811, 813; Madhvani v Sheehan, 234 AD2d 652, 654-655; see also Metzger v Aetna Ins. Co., 227 NY 411, 416). The plaintiff failed to raise a triable issue of fact in opposition.

The defendant Sullivan also demonstrated its prima facie entitlement to summary judgment. In support of its motion for summary judgment, Sullivan submitted the application for boat insurance on the basis of which it issued a boat insurance policy to the plaintiff. The application indicated that the plaintiff specifically requested the minimum level of liability coverage. While the application also indicated that the plaintiff had an umbrella policy, Sullivan was obligated only to procure the specific coverage requested. There is no evidence that the plaintiff asked for additional coverage to cover the gap resulting from the $25,000 minimum liability coverage under the boat insurance policy procured by Sullivan and the $300,000 deductible under the umbrella policy obtained through Whitmore, or that the plaintiff asked for any additional coverage above and beyond the $25,000 minimum. Moreover, the record provides no basis to conclude that the plaintiff and Sullivan had a special relationship that would give rise to the potential for a continuing duty on Sullivan's part to advise the plaintiff to obtain additional coverage. Thus, under the circumstances, Sullivan had no duty to advise the plaintiff as to the need for additional insurance coverage (see Chaim v Benedict, 216 AD2d 347, 347; cf. Reilly v Progressive Ins. Co., 288 AD2d 365, 366).

In light of the documentary evidence submitted by Sullivan, the plaintiff's deposition testimony that he did not recall telling anyone at Sullivan that he had an umbrella policy or that he wanted minimum coverage was insufficient to raise a triable issue of fact. Moreover, the plaintiff is conclusively presumed to have read and assented to the terms of the boat insurance policy procured by Sullivan (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376).
MILLER, J.P., GOLDSTEIN, SKELOS and FISHER, JJ., concur.

In the Matter of Allstate Insurance Company v. Vitiello

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant.
Castro & Associates, P.C., New York, N.Y. (Violet Samuels of  counsel), for respondent.
Abrams, Gorelick, Friedman & Jacobson, P.C., New York, N.Y. (Jay Gunsher of counsel), for proposed additional respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of an uninsured motorist claim, the petitioner Allstate Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated March 21, 2006, as denied that branch of its petition which was to permanently stay arbitration.

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

The undisputed evidence in the record supports a determination that the offending vehicle— which was owned by a nonresident and, if insured at all at the time of the subject accident, was insured by an out-of-state carrier not authorized to transact business in the State of New York and not subject to personal jurisdiction in this State— was an "uninsured motor vehicle" within the meaning of Insurance Law article 52 (see Insurance Law §§ 5202[c], [d]; Vehicle and Traffic Law §§ 311[3], [4]).

The appellant's remaining contentions either are unpreserved for appellate review or without merit.

In the Matter of USAA Casualty Insurance Company v. Hughes

Robert M. Spadaro, New York, N.Y., for appellant.
Connors & Connors, P.C., Staten Island, N.Y. (Timothy M. O'Donovan of counsel), for
respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay the arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Richmond County (Sacks, J.H.O.), dated December 22, 2005, which denied the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

On March 25, 2003, the respondent, Christopher Hughes, was involved in a three-car collision in Edison, New Jersey. At the time, he was driving a motorcycle which he owned and which had been insured by Universal Underwriters Insurance Company. However, the record indicates that the coverage for the motorcycle had expired on January 18, 2003.

At the time of the accident, Hughes had insured a 1998 Ford truck with the petitioner. That truck was the only vehicle listed on the motor vehicle insurance policy issued by the petitioner (hereinafter the policy). On or about July 8, 2003, Hughes, as claimant, served the petitioner with a demand for arbitration under the supplemental uninsured motorist arbitration rules for injuries he allegedly suffered in the March 25, 2003, accident. The demand was served by regular mail. By letter dated July 10, 2003, the petitioner denied coverage and on October 14, 2003, filed this proceeding to permanently stay the arbitration on the ground that the policy specifically excluded coverage in this instance.

Thereafter, Justice Minardo determined that the petition was timely and referred the issue of coverage to J.H.O. Sacks to hear and determine. J.H.O. Sacks determined that the petition was untimely, and that the policy provisions were ambiguous and thus had to be construed against the petitioner. He therefore denied the petition. We reverse.

As the petitioner contends and as is not disputed by Hughes, Justice Minardo determined that the petition was timely. Thus, J.H.O. Sacks was without authority to determine the issue of timeliness.

Contrary to the determination of J.H.O. Sacks, the policy language in question was not ambiguous and the petitioner is entitled to have the provisions it relied on to disclaim coverage enforced. The policy provisions at issue read:
"PART C - UNINSURED MOTORIST COVERAGE (referred to as UM)

. . .

"2. Definitions . . . .

"(a) Insured. The unqualified term 'insured' means:

"(1) The named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse;

"(2) Any other person while occupying:

(i) A motor vehicle owned by the named insured or, if the named insured is an individual, such spouse and used by or with the permission of either, or

(ii) Any other motor vehicle while being operated by the named insured or such spouse, except a person occupying a motor vehicle not registered in the State of New York, while used as a public or livery conveyance."

Additionally, the "Exclusions" provisions of Part C upon which the petitioner relies provide in relevant part:

 

"This UM Coverage does not apply:

. . .

"(3) To bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for at least the minimum bodily injury liability limits and UM limits required by law by the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of this policy."

This language is not ambiguous and the terms must be construed according to their plain and ordinary meaning. The policy provisions relied on by the petitioner unambiguously exclude from coverage, under the UM portion of the policy, compensation for bodily injuries an insured may sustain when injured in a motor vehicle accident with an uninsured vehicle, while occupying a motor vehicle he owns, which vehicle is not covered under the policy. Thus, the petition should have been granted (see Matter of Utica Mut. Ins. Co. v Reid, 22 AD3d 127, 129; Matter of New York Cent. Mut. Fire Ins. Co. [Prehoda], 231 AD2d 829; Matter of Metropolitan Prop. & Liab. Co. v Feduchka, 135 AD2d 715; see generally Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865; MDW Enters. v CNA Ins. Co., 4 AD3d 338; Gaetan v Fireman's Ins. Co. of Newark, 264 AD2d 806).

 

            Broad Street, LLC v. Gulf Insurance Company

 

Defendant appeals from an order of the Supreme Court, New York County (Edward H. Lehner, J.), entered September 19, 2005, which denied its motion for partial summary judgment.

Cozen O'Connor, Philadelphia, PA (Joshua Wall, of the Pennsylvania Bar, admitted pro hac vice, and C. Tyler Havey of counsel), and Cozen O'Connor, New York
(Melissa F. Brill of counsel), for appellant.
Stewart Occhipinti, LLP, New York (Frank S. Occhipinti of counsel), for
respondent.


NARDELLI, J.

In this appeal, we are asked to determine the scope of the business interruption coverage afforded in a commercial property insurance policy issued by defendant Gulf Insurance Company to plaintiff Broad Street, LLC, the owner of a lower Manhattan building which was temporarily closed in the aftermath of the September 11, 2001 destruction and mass murder at the World Trade Center. At the core of this dispute is the meaning of the policy term "necessary suspension"; plaintiff asserts the term should be interpreted to mean the suspension of "normal business activities," whereas defendant submits the term is clear and unambiguous and is triggered only by a total interruption of business operations.

Plaintiff Broad Street, LLC (Broad Street) owns and operates the building designated as 25 Broad Street, New York, New York. The building, which is located approximately three blocks from the World Trade Center site, consists of 345 residential units and three commercial spaces. There is no dispute that following the events of September 11, 2001, the building was completely shut down from that day to September 18, 2001, at which time tenants were permitted back into their units. Plaintiff's staff, during the week the building was closed, cleaned the common areas, as well as the apartments, especially those with windows that had been left open, and replaced all of the air filters in the building.

There is also no dispute that a commercial property insurance policy was issued to plaintiff by defendant Gulf Insurance Company and covered the building at the time in question. The policy provides, in pertinent part:

"We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your operations' during the period of restoration.' The suspension must be caused by direct physical loss of or damage to property at the premises described in the Declarations . . . caused by or resulting from any Covered Cause of Loss."

"Operations" is defined in the policy as "your business activities occurring at the described premises"; "period of restoration" is defined as the period that "begins on the date of direct physical loss or damage caused by or resulting from the Covered Cause of Loss at the described premises" and "[e]nds on the date when the property at the described premises should be repaired, rebuilt or replaced with reasonable speed and similar quality."

Plaintiff, by letter dated September 24, 2001, informed defendant that the building had sustained damage "in the form of smoke and soot in all common areas, building systems and apartments in addition to lost gas and steam service," and that the building had been evacuated from September 11 through September 17 ^[FN1]. Plaintiff further stated that its business interruptions losses:

"are on-going as we have not resumed normal business operations. While some tenants have returned to the building, other [sic] have not. Normal business-life in the vicinity of our residential building has not resumed due to on going [sic] transportation limitations, street closures and limited deliveries.

 

"Moreover, utilities, including phone and cable, to the building continue to be interrupted. There are public health warnings related to air quality that continue during the clean up effort.

"All of this is not only disruptive to our existing tenancy, it is also seriously affecting our ability to rent vacant apartments and retail space."

The tenants of the building, through counsel, informed plaintiff, by letter dated December 28, 2001, that:

"The problems encountered by financial district Residents are legion, and have been well documented by the media and in various legal actions: temporary ouster from their homes only to return to dust-filled apartments; the lingering, and potentially harmful, stench from Ground Zero that has caused many residents to experience respiratory or other complications with long-term effects yet to be determined; the morbid reality of a mass graveyard just a few blocks away."

Tenants' counsel further noted that due to security measures, streets in the area were closed to vehicles, and tenants had to walk a block or more to hail a taxi. Counsel concluded that the building and the area were no longer what the tenants had bargained for when they executed their leases and, as a result, sought, inter alia, a full rent credit from September 11 through September 30; a rent reduction from October 1, 2001 through September 30, 2002; an option to surrender the lease upon 30 days' notice; and monthly air- and water-quality testing. Plaintiff eventually provided a number of concessions to its tenants, including rent abatements or reduced rents to those who remained in the building.

Plaintiff subsequently commenced the within action by the service of a summons and complaint in August 2002, seeking coverage for the business losses it sustained up to the commencement of the action, which were purportedly in excess of $17 million, plus a declaratory judgment declaring that defendant is obligated to pay plaintiff's loss of business claims for the entire period of restoration.

Defendant answered the complaint and, after the completion of discovery, moved for partial summary judgment seeking an order: that under the terms of the policy, the period of restoration during which plaintiff is entitled to recover its actual loss of business income is from September 11, 2001 through and including September 17, 2001; that any loss of income sustained after September 17, 2001 is not within the policy coverage; and that any consequential damages are dismissed with prejudice. Defendant did not, and does not now, contest that its policy covered plaintiff's losses from September 11 through September 17, but asserts that under the unambiguous terms of the policy, in order to be covered, the business losses must occur during a "necessary suspension," which means a total cessation of plaintiff's business. Defendant argues that once tenants were permitted to return to the building after September 17, plaintiff's claims no longer fell within the parameters of the policy.

The motion court denied defendant's motion, finding issues of fact as to whether plaintiff was prevented, after September 17, "from providing functionally equivalent services to the residential tenants occupying apartments at the time of the attack." Defendant appeals and we now reverse.

Initially, we reject plaintiff's contention that defendant has waived its argument that the policy requires a complete cessation of operations for the full period of its business income loss in order to trigger coverage because it never raised this argument before the motion court. A review of the record reveals that defendant clearly and repeatedly argued that coverage for plaintiff's income loss was limited to the week-long period when plaintiff's operations were suspended; that when the building was opened, utilities were restored, and tenants were returning, plaintiff's operations could no longer be considered suspended; that coverage was only for the "necessary suspension of operations," in other words, once the insured has resumed operations, the required element of a "suspension of operation" is no longer present; and that this did not mean "normal operations," but only "necessary suspensions," which in this case lasted only until September 18.

In any event, this Court has the authority to reach the merits of defendant's argument, even if it were made for the first time on appeal, because such argument is clearly supported by facts already in the record (DeRosa v Chase Manhattan Mtge. Corp., 10 AD3d 317, 319 [2004]; Matter of New Hampshire Indem. Co. v Vranica, 294 AD2d 287 [2002]). Further, as this Court has previously stated, the interpretation of an insurance policy is a question of law, which can be raised for the first time on appeal (Star City Sportswear, Inc. v Yasuda Fire & Mar. Ins. Co. of Am., 1 AD3d 58, 62 [2003], affd 2 NY3d 789 [2004]; Lumbermens Mut. Cas. Co. v Schrem, 227 AD2d 280 [1996]).

Turning to the merits of defendant's argument, our analysis begins with the well-established principles governing the interpretation of insurance contracts, which provide that the unambiguous provisions of an insurance policy, as with any written contract, must be afforded their plain and ordinary meaning, and that the interpretation of such provisions is a question of law for the court (2619 Realty v Fidelity & Guar. Ins. Co., 303 AD2d 299, 300 [2003], lv denied 100 NY2d 508 [2003]; Muzzuoccolo v Cinelli, 245 AD2d 245, 246-247 [1997]). Moreover, when interpreting the policy, the court " may not make or vary the contract of insurance to accomplish [its] notion of abstract justice or moral obligation'" (Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996], quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]; and see Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 49 [1985], affd 66 NY2d 1020 [1985] ["[a] court, no matter how well intentional, cannot create policy terms by implication or rewrite an insurance contract. Nor should a court disregard the provisions of an insurance contract which are clear and unequivocal . . . or accord a policy a strained construction merely because that interpretation is possible. An insurer is entitled to have its contract of insurance enforced in accordance with its provisions and without a construction contrary to its express terms"] [internal citations omitted]). If, however, there is ambiguity in the terms of the policy, any doubt as to the existence of coverage must be resolved in favor of the insured and against the insurer, as drafter of the agreement (Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d 334, 339 [2000]; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]).

A contract of insurance is ambiguous if the language therein is susceptible of two or more reasonable interpretations (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Matter of Ideal Mut. Ins. Co., 231 AD2d 59, 63 [1997]), whereas, in contrast, a contract is unambiguous if the language has "a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Breed v Insurance Co., 46 NY2d at 355; see also Greenfield v Philles Records, 98 NY2d 562, 569-570 [2002], Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460 [1957] ["[m]ere assertion by one that contract language means something to him, when it is otherwise clear, unequivocal and understandable when read in connection with the whole contract, is not in and of itself enough to raise a triable issue of fact"]).

In this matter, contrary to the finding of the motion court, we perceive of no ambiguity in the governing language of the subject insurance policy. Indeed, in 54th St. Ltd. Partners, L.P. v Fidelity & Guar. Ins. Co. (306 AD2d 67 [2003]), and, more recently, in Royal Indemnity Company v Retail Brand Alliance, Inc. (__ AD3d __, 822 NYS2d 268 [2006]), this Court addressed the very issue pivotal on this appeal and determined that in order for business interruption insurance to be triggered, there must be a " necessary suspension,' i.e., a total interruption or cessation" of operations (54th St. Ltd. Partners, 306 AD2d at 67; see also Royal Indemn. Co. v Retail Brand Alliance, Inc., 822 NYS2d at 269).

Numerous other jurisdictions have considered the foregoing policy language and arrived at the same conclusion (see e.g. Apartment Movers of Am., Inc. v One Beacon Lloyds of Texas, 170 Fed Appx 901, 901 [5th Cir 2006] [a slow down in business experienced by the insured was not a " necessary suspension of your operations' so as to trigger coverage for loss of business income"]; Madison Maidens, Inc. v American Mfrs. Mut. Ins. Co., __ F Supp __, 2006, US Dist LEXIS 39633 [SD NY 2006] [although plaintiff's offices sustained serious flood damage, uncontroverted evidence that at least two of plaintiff's employees were able to perform their normal duties indicated that there was no cessation of business to trigger the insured's business interruption coverage]; Keetch v Mutual of Enumclaw Ins. Co., 831 P2d 784 [Wash Ct App. 1992] [although plaintiff's motel was buried in six inches of ash following a volcanic eruption, and, as a result, suffered a dramatic decrease in occupancy, it remained open and, therefore, could not recover under its business interruption policy]; Buxbaum v AETNA Life & Cas. Co., 103 Cal App 4th 434 [Cal Ct App], review denied 2003 Cal LEXIS 2251 [2002] [since the plaintiff law firm suffered water damage to its offices, but since attorneys working in the office continued to bill hours on the day the flood damage was discovered there was no suspension of operations to trigger the business interruption loss provisions of the policy]). The Buxbaum court succinctly stated that:

"[i]n order for business income coverage to apply, the Policy requires that there be a necessary suspension' of operations. This term is not defined in the policy . . . . [¶] Webster's Third New International Dictionary defines suspension' as the act of suspending or the state or period of being suspended, interrupted, or abrogated.' Suspended' is defined as temporarily debarred, inactive, inoperative.' These definitions comport with what appears to be the common understanding of the term suspension,' that is, that it connotes a temporary, but complete, cessation of activity. Thus, if one were to apply the plain, ordinary meaning to the use of the phrase necessary suspension' within the policy, in order for a claim to fall within the coverage provision it would require that any direct physical loss of or damage to property result in the cessation of [the insured's] operations."

quoting Home Indemnity Company v Hyplains Beef, L.C., 893 F Supp 987, 991-992 [D Kan 1995], affd 89 F3d 850 [10th Cir 1996] (internal quotation marks omitted) (emphasis in original); American States Ins. Co. v Creative Walking, Inc. (16 F Supp 2d 1062 [ED Miss 1998], affd 175 F3d 1023 [8th Cir 1999] [a claim for lost income was limited to the 13-day period in which the insured's business was suspended after a water main break, despite the longer lasting slow-down in business]).

Accordingly, we find that plaintiff's business interruption loss is restricted to the period between the September 11 attack on the World Trade Center and September 18, when tenants were again allowed to reside in their apartments.

We find unavailing plaintiff's reliance on section G.1. of the policy, under "Loss Conditions," entitled "Resumption of Operations," which states:

"a. Business income loss, other than Extra Expense, to the extent you can resume your operations,' in whole or in part, by using damaged or undamaged property (including merchandise or stock) at the described premises or elsewhere.

"b. Extra expense loss to the extent you can return operations' to normal and discontinue such Extra Expenses."

While plaintiff maintains that this mitigation provision, which reduces payments to the extent operations can be resumed "in whole or in part" conflicts with any interpretation of "necessary suspension," which requires total cessation of operations, the plain meaning of the word "resume" indicates that in order for the provision to apply, there must necessarily have been a stoppage of operations " from which it was necessary to begin anew'" (see Buxbaum, 103 Cal App 4th at 445, quoting Home Indem. Co. v Hyplains Beef, L.C., 893 F Supp at 993).

We reject plaintiff's argument that because it was unable to provide a habitable environment for its residents by September 18, it cannot be considered to have resumed operations. In the first instance, plaintiff submits no evidence to support the conclusion that any tenant, let alone every tenant, was prevented from returning to their units due to a breach of the warranty of habitability. The majority of the tenants' letters submitted by plaintiff, which are unsworn and inadmissible in any event, seek rent reductions, not release from their leases. Further, plaintiff's own superintendent testified that air filters were changed as often as tenants requested, that the building's HVAC system was undamaged, and that air quality testing, commenced the September in question, was continued on an "ongoing basis," with results within acceptable limits.

Plaintiff also contends that it should be covered under defendant's policy for the "period of restoration," which extended well beyond the one-week period its tenants were barred from their apartments. This argument, however, is also unavailing as the restoration period is only as long as necessary for plaintiff to resume operations, as it is tied in to the requirement that there be a "necessary suspension of your operations" (see Admiral Indem. Co. v Bouley Intl. Holding, LLC, 2003 US Dist LEXIS 20324 [SD NY 2003] [where the court held that defendant restaurant's restoration period following the September 11 attack ended when it began serving Red Cross volunteers, even though it had not opened, because the period of restoration ended when the business could resume operations]; Streamline Capital, L.L.C. v Hartford Cas. Ins. Co., [SD NY 2003] [business income coverage only applies to the suspension of plaintiff's operations, indicating that the period of restoration is dependent only on replacing what is necessary to resume those operations]; accord Duane Reade, Inc. v St. Paul Fire & Marine Ins. Co., 411 F3d 384, 395-396 [2nd Cir 2005]).

Finally, the complaints and dissatisfaction voiced by plaintiff, and its tenants, revolve around the dust, smell and inconvenience of lower Manhattan. The policy, however, expressly states that the "period of restoration" does not include any increased period required due to enforcement of any ordinance or law which "[r]equires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or address the effects of pollutants."

In sum, the record establishes that plaintiff had resumed operations as of September 18, 2001, in that it had cleaned most of the debris from the September 11 attacks, changed the building's air filters, re-established all utilities and allowed tenants to return. Moreover, the air filters continued to be changed regularly, as the tenants forwarded requests, and ongoing air testing was performed indicating the air quality was within acceptable Environmental Protection Agency levels. Thus, plaintiff was no longer suffering a "necessary suspension" of its business operations.

Accordingly, the order of the Supreme Court, New York County (Edward H. Lehner, J.), entered September 19, 2005, which denied defendant's motion for partial summary judgment seeking an order: that under the terms of the policy, the period of restoration during which plaintiff is entitled to recover its actual loss of business income is from September 11, 2001 through and including September 17, 2001; that any loss of income sustained after September 17, 2001 is not within the policy coverage; and that any consequential damages are dismissed with prejudice, should be reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

Hasner v. Budnik

 

DECISION & ORDER

In two related actions to recover damages for personal injuries, etc., (1) the defendants Leslie L. Ross and Kevin R. Ross appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated July 21, 2005, as denied their motion for summary judgment dismissing the complaint and all cross-claims in Action No. 2 insofar as asserted against them on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), and granted the separate motions by the defendants Phillip G. Barbieri and Gemini Traffic Sales, and Sherryl Burman, for summary judgment dismissing the complaints and all cross claims in both actions insofar as asserted against them, and by the defendant Steven Hasner for summary judgment dismissing the complaint and all cross claims in Action No. 1 insofar as asserted against him; and (2) the defendant Catherine M. Budnik separately appeals from so much of the same order as denied her separate motion for summary judgment dismissing the complaint and all cross claims in Action No. 2 insofar as asserted against her on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the appeal from so much of the order as granted the separate motions of the defendants Philip Barbieri and Gemini Traffic Sales, and Sherryl Burman, and the defendant Steven Hasner for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is dismissed as academic; and it is further

ORDERED that the order is reversed insofar as reviewed, on the law, the separate motions of the defendants Leslie L. Ross and Kevin R. Ross and the defendant Catherine M. Budnik for summary judgment dismissing the complaint and all cross claims in Action No. 2 insofar as asserted against those defendants are granted; and it is further,

ORDERED that one bill of costs is awarded to the appellants, appearing separately and filing separate briefs, payable by the plaintiffs in Action No. 2.

The appellants demonstrated prima facie, through the affirmed reports of their medical experts and supporting documentation, that neither plaintiff in Action No. 2 sustained a serious injury within the meaning of Insurance Law § 5102(d), since those reports supported the conclusion that each plaintiff experienced only various sprains and strains which had since resolved (see Gaddy v Eyler, 79 NY2d 955). Moreover, the testimonial admissions of both plaintiffs in Action No. 2 that, in the year following the accident, they each had missed fewer than 10 days of work as a result of the accident, undermined their respective claims that their injuries prevented them from performing substantially all of the material acts constituting their customary daily activities during at least 90 out of the first 180 days following the accident (see Chinnici v Brown, 295 AD2d 465; Letellier v Walker, 222 AD2d 658). In opposition, the plaintiffs in Action No. 2 failed to raise a triable issue of fact as to whether they suffered serious physical injury within the meaning of Insurance Law § 5102(d). Neither the plaintiffs nor their medical expert adequately explained the 4½; - year gap in office visits on the part of the plaintiff Vivienne Hasner, or the 5½; - year gap on the part of the plaintiff Steven Hasner; nor did they set forth the treatment, if any, which the plaintiffs in Action No. 2 may have received during those periods (see Pommells v Perez, 4 NY3d 566; Connors v Flaherty, 32 AD3d 891; Gomez v Epstein, 29 AD3d 950; Bycinthe v Kombos, 29 AD3d 845).

In view of the foregoing determination, the challenge of the appellants Leslie L. Ross and Kevin R. Ross to the Supreme Court's award of summary judgment in favor of the defendants Phillip G. Barbieri and Gemini Traffic Sales, Sherryl Burman and Steven Hasner has been rendered academic, and we need not review that portion of the order appealed from.

Lopez v Starkis Geraldino

 

Rimland & Associates, Brooklyn, N.Y. (Anthony M. Grisanti of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Michael I. Josephs of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated July 15, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the causes of action predicated on allegations that the plaintiff sustained a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The defendants established, through competent expert evidence (see Dufel v Green, 84 NY2d 795), that the plaintiff did not sustain a "permanent loss of use of a body organ, member, function or system[, a] permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system" within the meaning of Insurance Law § 5102(d). In opposition, the plaintiff failed to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the causes of action predicated on those categories of serious injury (see Toussaint v Claudio, 23 AD3d 268; Lowell v Peters, 3 AD3d 778; Tornatore v Haggerty, 307 AD2d 522).

The court erred, however, in granting that branch of the defendants' motion which was for summary judgment dismissing the causes of action predicated on allegations that the plaintiff sustained "a medically determined injury or impairment of a non-permanent nature which prevent[ed her] from performing substantially all of the material acts which constitute[d her] usual and customary daily activities for not less than [90] days during the [180] days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102[d]). The defendants did not adequately address that category of serious injury in their motion papers and, therefore, failed to establish their prima facie entitlement to summary judgment as to that claim (see Toussaint v Claudio, supra; Lowell v Peters, supra; Tornatore v Haggerty, supra; see also Volpetti v Yoon Kap, 28 AD3d 750; Sayers v Hot, 23 AD3d 453; Perez v Ali, 23 AD3d 363). Accordingly, summary judgment should not have been granted with respect to the 90/180 category of serious injury.

Mejia v. DeRose

Kenneth M. Mollins, P.C., Melville, N.Y. (Seth W. Berman of
counsel), for appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel),
for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated February 17, 2006, as granted that branch of the defendants' motion which was 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 insofar as appealed from, with costs.

The defendants satisfied their prima facie burden of showing that the plaintiff did not sustain a serious injury as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). Contrary to the plaintiff's contention, the evidence submitted in opposition to the defendants' prima facie showing was insufficient to establish that he sustained a significant limitation of use of a body function or system and, accordingly, that he sustained a serious injury within the meaning of Insurance Law § 5102(d). In order to establish that a plaintiff suffered a significant limitation of use of a body function or system, that plaintiff is required to provide objective evidence of the extent or degree of the limitation and its duration (see Beckett v Conte, 176 AD2d 774), based on a recent examination of the plaintiff (see Young v Russell, 19 AD3d 688, 689; Silkowski v Alvarez, 19 AD3d 476; Kooblall v Morris, 276 AD2d 595). Here, while the affirmation of the plaintiff's treating physician was dated "November, 2005," the conclusions set forth therein were based on examinations that took place two years prior to the defendants' motion for summary judgment (see Tudisco v James, 28 AD3d 536; Murray v Hartford, 23 AD3d 629). The plaintiff also submitted the affirmed magnetic resonance imaging report of his lumbar spine performed on November 20, 2003, which revealed that the plaintiff had mild disc bulges at L4-5 and L5-S1. This report did not, alone, establish a serious injury in the plaintiff's lumbar spine. The mere existence of a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). In the absence of such admissible objective evidence of injury, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether he sustained a serious injury under the significant limitation of use category (see Felix v New York City Tr. Auth., 32 AD3d 527; Ramirez v Parache, 31 AD3d 415; Fisher v Williams, 289 AD2d 288). The plaintiff's remaining submissions, which consisted of his hospital records, were insufficient to defeat the motion since they were uncertified.
FLORIO, J.P., RITTER, GOLDSTEIN and COVELLO, JJ., concur.

Mirochnik v. Ostrovskiy

Hawkins, Feretic & Daly, LLC, New York, N.Y. (Sean M.
Prendergast of counsel), for appellant.
Thomas D. Wilson, P.C., Brooklyn, N.Y., for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated January 13, 2006, which denied his 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.

While we affirm the order of the Supreme Court, we do so on grounds other than those relied upon by the Supreme Court. The defendant failed to establish 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). The affirmed medical report of the defendant's examining orthopedist was fatal to the defendant meeting his prima facie burden. Noted in the medical report was the fact that the plaintiff's magnetic resonance imaging reports revealed disc herniations and bulges in the cervical and lumbar regions of her spine. When he set forth in his report his findings as to the plaintiff's range of motion testing, he noted that the plaintiff was able to, in the lumbar region of her spine, flex to 90 degrees, extend to 20 degrees, right and left laterally bend to 30 degrees, and right and left rotate to 40 degrees. While he set forth these findings, he failed to compare these findings to the normal range of motion (see Mondi v Keahon, 32 AD3d 506; Benitez v Mileski, 31 AD3d 473; Abraham v Bello, 29 AD3d 497; Yashayev v Rodriguez, 28 AD3d 651; Sullivan v Dawes, 28 AD3d 472; Browdame v Candura, 25 AD3d 747; Paulino v Dedios, 24 AD3d 741; Kennedy v Brown, 23 AD3d 625; Baudillo v Pam Car & Truck Rental, 23 AD3d 420; Manceri v Bowe, 19 AD3d 462; Aronov v Leybovich, 3 AD3d 511). Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, it was unnecessary to consider whether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact (see Mondi v Keahon, 32 AD3d 506; Coscia v 938 Trading Corp., 283 AD2d 538).

Nakanishi, v. Sadaqat

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Asaz Sadaqat and Midi Taxi, Inc., appeal, and the defendants Nissan Infinity, LT, and the defendants Danielle L. Corsaro and Richard R. Corsaro separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated September 19, 2005, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs.

While we affirm, we do so on a ground other than that relied upon by the Supreme Court in the order appealed from. Contrary to the Supreme Court's holding, 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 defendants relied on the same evidentiary submissions in their attempts to establish their prima facie burdens. Their submissions included only one affirmed medical report. Although the defendants' neurologist recorded in this report, dated October 21, 2004, that the plaintiff had not worked since the subject accident, a period of time of more than a year and a half, he never addressed one of the major allegations contained in the plaintiff's bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see Talabi v Diallo, 32 AD3d 1014; Sayers v Hot, 23 AD3d 453; Nembhard v Delatorre, 16 AD3d 390).

Since the defendants failed to establish their prima facie burdens in the first instance, it is unnecessary to reach the question of whether the plaintiff's papers were sufficient to raise a triable issue of fact (see Talabi v Diallo, supra; Sayers v Hot, supra; Coscia v 938 Trading Corp., 283 AD2d 538).

Nkhereanye v. Hillaire

Schwartzapfel Novick Truhowsky & Marcus, P.C. (Alexander J.
Wulwick, New York, N.Y., of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for
respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated August 17, 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 their prima facie entitlement to judgment as a matter of law through competent evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject automobile accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; D'Alba v Yong-Ae Choi, 33 AD3d 650; Faulkner v Steinman, 28 AD3d 604; Giraldo v Mandanici, 24 AD3d 419; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact. Most of the plaintiff's medical submissions were without probative value because they were unsworn or unaffirmed (see Grasso v Angerami, 79 NY2d 813; Bycinthe v Kombos, 29 AD3d 845; Pagano v Kingsbury, 182 AD2d 268). The affirmed medical report of the plaintiff's orthopedist also lacked probative value because it relied on the unsworn reports of others (see Baksh v Shabi, 32 AD3d 525; Felix v New York City Tr. Auth., 32 AD3d 527; Jian-Yu Zhang v Qiang Wang, 24 AD3d 611; Friedman v U-Haul Truck Rental, 216 AD2d 266). The remainder of the plaintiff's submissions was insufficient to raise a triable issue of fact (see Brobeck v Jolloh, 32 AD3d 526).

Alexander v. Geico Insurance Company.

Calendar Date: October 10, 2006
Before: Cardona, P.J., Spain, Carpinello, Rose and Lahtinen, JJ.


Mark A. Schneider, Plattsburgh, for appellant.
Thuillez, Ford, Gold, Johnson & Butler, Albany
(Donald P. Ford Jr. of counsel), for respondent.

MEMORANDUM AND ORDER


Carpinello, J.

Appeal from an order of the Supreme Court (Dawson, J.), entered November 18, 2005 in Clinton County, which, inter alia, partially granted defendant's cross motion to dismiss the complaint.

Plaintiff was injured in an April 2002 automobile accident for which she received no-fault benefits from defendant, her automobile insurance carrier ^[FN1]. At some point thereafter, however, defendant refused to cover certain treatments prompting plaintiff to commence this action. In addition to asserting a breach of contract claim against defendant, plaintiff asserted causes of action sounding in bad faith and tort (with a concomitant request for punitive damages). At issue is an order of Supreme Court which, among other things, dismissed the bad faith and tort causes of action. We now affirm.

Construing the complaint in the liberal light to which it is entitled on a motion to dismiss (see CPLR 3211 [a]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we nevertheless conclude that the causes of action sounding in tort and bad faith were not properly stated. The essence of plaintiff's dispute with defendant is the latter's breach of contract in failing to provide her with continued no-fault benefits following her accident. Plaintiff has failed to allege or demonstrate the creation of a relationship or duty between herself and defendant separate from this contractual obligation; therefore, no independent tort claim lies (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 192-193 [2000], lv dismissed 96 NY2d 823 [2001]). Moreover, no separate cause of action exists in tort for an insured's alleged bad faith in failing to perform its contractual obligations (see New York Univ. v Continental Ins. Co., supra; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [2005]; Royal Indem. Co. v Salomon Smith Barney, 308 AD2d 349, 350 [2003]; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002], lv dismissed 99 NY2d 552 [2002]). Thus, the bad faith claim was also properly dismissed.

To the extent that plaintiff also sought punitive damages in her complaint, such demands were also properly dismissed because there is no basis for determining that defendant's conduct constitutes a tort independent of the contract (see New York Univ. v Continental Ins. Co., supra at 316-317; Logan v Empire Blue Cross & Blue Shield, supra at 194) and because her allegations do not demonstrate that defendant, in dealing with the general public, engaged in egregious or fraudulent conduct evincing "such wanton dishonesty as to imply a criminal indifference to civil obligations" (New York Univ. v Continental Ins. Co., supra at 316 [internal quotation marks and citations omitted]; accord Rocanova v Equit. Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]; see Varveris v Hermitage Ins. Co., 24 AD3d 537, 538 [2005]; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43, 46 [1991], lv dismissed 78 NY2d 1072 [1991]; Hebert v State Farm Mut. Auto. Ins. Co., 124 AD2d 958, 959 [1986], lv dismissed 69 NY2d 1038 [1987]; Korona v State Wide Ins. Co., 122 AD2d 120, 121 [1986]).

To the extent preserved, plaintiff's remaining contentions have been reviewed and rejected, including the claim that the driver of the vehicle should have been added as a party.

Cardona, P.J., Spain, Rose and Lahtinen, JJ., concur.

Andrade v. Triborough Bridge & Tunnel Authority, doing business as MTA Bridges & Tunnels, et al v. Transcontinental Insurance Company, et al.

 

Ellenberg & Rigby, LLP, New York (James H. Irish of
counsel), for Triborough Bridge & Tunnel Authority and Perini
Contracting, appellants/respondents.
Ahmuty, Demers & McManus, Albertson (Brendan T.
Fitzpatrick of counsel), for respondent-appellant.
Colliau Elenius Murphy Carluccio Keener & Morrow, New
York (Marian S. Hertz of counsel), for Transcontinental
Insurance Company and Transportation Insurance Company,
appellants.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about April 14, 2005, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Warde Electric Contracting for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 and
§ 241(6) claims against it, but denied so much of that motion seeking summary dismissal of the cross claims for indemnification against it by defendants TBTA and Perini, and dismissed TBTA's additional party complaint as against third-party defendant Westport Insurance, unanimously modified, on the law, Warde's motion for summary judgment denied with respect to plaintiff's claims for common-law negligence and under Labor Law § 200, those claims reinstated, and otherwise affirmed, without costs.

It is undisputed that plaintiff's injury was caused by his trip and fall into a construction site hole that was negligently left uncovered. The claim under Labor Law § 241(6) was properly dismissed as against Warde because there was no evidence that it was a statutory agent, owner or general contractor at the site. Similarly, there is no basis for the summary relief defendants TBTA and Perini now seek on their third-party claims against Warde's insurers, Transcontinental Insurance and Transportation Insurance. However, we find, upon reviewing the record, that Warde did not sufficiently establish that it could not have been the negligent party, in light of other testimony that Warde was seen working in or near the hole on the day in question, thus leaving an issue of fact on the claims for common-law negligence and under § 200.

The third-party complaint as against defendant Westport Insurance was properly dismissed for lack of privity. Although Westport did not move for that specific relief, the privity issue was briefed by its fellow third-party defendants on their motions to dismiss (cf. Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]).

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

Long Island Lighting Company v. Allianz Underwriters Insurance Company, et al.,

 

Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York
(Jody M. Tawfik of counsel), for appellant.
Dickstein Shapiro Morin & Oshinsky, LLP, New York
(Edward Tessler of counsel), for respondents.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered March 17, 2005, which, to the extent appealed from as limited by the briefs, upon granting plaintiff's motion for
reargument and renewal, modified an earlier order of the same court (Ira Gammerman, J.), entered on or about December 24, 2003, to deny summary judgment to defendant Continental Casualty Company, affirmed, with costs.

"The supreme court may render a declaratory judgment having  the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (CPLR 3001). A declaratory judgment action thus "requires an actual controversy between genuine disputants with a stake in the outcome," and may not be used as "a vehicle for an advisory opinion" (Siegel,  Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,  CPLR C3001:3).

Here, the "potential liability" may reach into Continental's excess coverage, rendering this controversy justiciable. The Court of Appeals has recognized that, "[t]here are different ways to prorate liability among successive policies" (Consolidated Edison Co. of New York, Inc. v Allstate Ins. Co., 98 NY2d 208, 224 [2002]). Furthermore, the worst case or "highest estimate of damages" (id. at 225) may be used to ascertain whether or not a claim is justiciable against a particular excess insurer's policy (State Farm Fire & Cas. Co., Inc. v LiMauro, 103 AD2d 514, 517-518 [1984], affd 65 NY2d 369 [1985]). Our holding in Combustion Eng'g, Inc. v Travelers Indem. Co., (75 AD2d 777 [1980], affd 53 NY2d 875 [1981]), relied upon by defendant Continental, does not dictate the opposite conclusion. The plaintiff in Combustion Engineering pleaded damages in an amount less than the excess carrier's policy floor, and thus failed to state a claim that the excess policy could even be reached. Given plaintiff's highest projected damages in the instant case, as established by their expert who took into account, inter alia, new investigations and concomitant remedial recommendations as well as the County's push for more stringent clean-up measures, there is a question of fact precluding summary judgment, as to whether Continental's excess insurance policy is implicated.

All concur except Williams and McGuire, JJ. who dissent in a memorandum by McGuire, J. as follows:

 

McGUIRE, J. (dissenting)

I respectfully dissent. The parties apparently agree that, in accordance with Consolidated Edison Co. v Allstate Ins. Co. (98 NY2d 208, 221-225 [2002]), the estimated damages must be prorated among the various insurers over the 33 years of insurance coverage. According to plaintiffs' expert, the likely scenario in its view is that the costs plaintiffs have incurred and will incur in investigating and remediating the contamination at any of the seven sites will not be sufficient to implicate the excess liability policy issued by defendant Continental Casualty Co. with the lowest attachment point.

The report of plaintiffs' expert, "includes a probabilistic cost analysis that identified the reasonable range of site contamination conditions and the potential remediation measures that may be required at each site. Probabilities were assigned to each potential remediation measure, and the cost of each remediation measure was estimated." In addition to setting forth the most probable or "expected" estimate for each site, the report sets forth the estimates at various percentile levels, including at the "highest cost" level — i.e., at the " 95th percentile' level [where] 95% of the cost outcomes are equal to or less than this value, and 5% are greater." The worst case or highest cost estimate of damages at one of the sites would be sufficient to implicate one of the four excess liability policies issued by Continental, the policy in place for the period from July 1, 1954 to July 1, 1956 with an attachment point of $3.525 million. At the 85th percentile level, however, this policy would not be reached.

It appears then from the submissions of plaintiffs' own expert that there is only a slim chance that the 1954 to 1956 policy will ever be reached and virtually no chance that any of the other Continental policies will be reached. As the Second Department has stated, "it is long settled that a declaratory judgment action against insurers, including excess carriers, is permitted prior to judgment where the judgments likely to be recovered in the underlying claims would amount to more than the excess floor . . . or the potential liability might well reach into the excess coverage" (State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, 518 [1984], affd 65 NY2d 369 [1985] [internal quotation marks and citations omitted; emphasis added]). Accordingly, the action against Continental should be dismissed "on the ground that . . . there is at present no real dispute permitting adjudication by the Court" (Combustion Eng'g v Travelers Indem. Co., 75 AD2d 777, 779 [1980], affd 53 NY2d 875 [1981]).

Plaintiffs' contention that in Consolidated Edison Co. v Allstate Ins. Co. (supra) the Court of Appeals accepted the legitimacy of using the highest projection of damages to determine justiciability is without merit. For purposes of litigating the justiciability motions, the parties in Consolidated Edison Co. appear not to have disputed the trial court's use of the highest projection of damages by Con Edison's expert. For all that appears in the opinion of the Court of Appeals, it may be that the position of the moving insurers was that they were entitled to dismissal even if the use of the highest projection were permissible. In any event, the issue was not addressed by the Court and nothing in its opinion suggests that the Court was endorsing the use of the highest projection of damages, however unlikely such a projection may be in a particular case, as the appropriate benchmark.

For these reasons, I would reverse and deny plaintiffs' motion for reargument and renewal.

Wadford v. Gruz

Phillips, Krantz & Levi, LLP, New York (Heath T. Buzin of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 23, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action. The affirmation of defendants' examining physician, Dr. Hughes, failed to meet that burden. Although he reportedly found no evidence of any neck or back injury, Dr. Hughes failed to address plaintiff's objective tests that were indicative of a serious injury (see Offman v Singh, 27 AD3d 284 [2006]). MRI reports documented herniations of the spine, some of which were encroaching on the neural foramina, and EMG test results documented neurological sequelae resulting therefrom.

Plaintiff also came forward with sufficient evidence to create an issue of fact as to whether she met the threshold requirement of Insurance Law § 5102(d). Dr. Goldenberg, who first examined the patient one week after the accident, indicated that plaintiff suffered from herniations in the neck and back, documented by the MRI testing referred to above, as well as EMG tests revealing radiculopathies. The MRI and EMG reports documenting these objective test results were annexed and authenticated.

Dr. Goldenberg further explained that plaintiff underwent physical therapy for six months, and was instructed to perform a home exercise program when it was believed that she had reached maximum medical improvement. Plaintiff explained that no-fault stopped her benefits, and she thereafter discontinued therapy, thus explaining the gap in her treatment (cf. Pommels v Perez, 4 NY3d 566 [2005]). The motion court's speculation that plaintiff might have continued treatment through her private health insurer is belied by plaintiff's and Dr. Goldenberg's statements. In a more recent examination, Dr. Goldenberg documented ongoing restrictions of motion in plaintiff's neck and back, which in his opinion were permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]).

Dr. Goldenberg also specifically noted that plaintiff had a prior accident in 1998, resulting in injury to her lower back. Dr. Goldenberg was in possession of the MRI report of the [*2]lumbar spine, taken after that earlier accident (which was also authenticated and submitted to the court), documenting disc bulges at L4-5 and L5-S1. Notably, these were the same discs that were herniated and encroaching on the nerve after the 2004 accident, save for an additional injured disc noted at L3-4. Dr. Goldenberg documented the differences in the reports and concluded that the herniations resulted from the 2004 accident.

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

ENTERED: DECEMBER 14, 2006