Coverage Pointers - Volume VIII, No. 13

Dear Coverage Pointers Subscribers:

 

            Happy New Year from your friends at Hurwitz & Fine.  Let me take this opportunity to thank those of you who have been kind enough to (a) write notes to us during the year with suggestions, comments, praise or (occasionally) complaints and (b) consider us for business, counsel or advice.  So many of you are clients and/or referrers of business and you've made our year that much happier as a result.  And for those who are not .. well, it's not too late to make a New Year's resolution!

 

            You'll find a review of 40 appellate decisions involving insurance coverage handed down by New York appellate courts in the past two weeks in our 64 page edition (17 pages of summaries).  Our fingers are typed down to the bone in the banner issue, attached.  You'll also find Audrey Seeley's "Angles" and Mark Starosielec's "Serious" Side of Serious Injury reviews.

 

            As we reflect on this past year's 26 issues, we can see some trends and themes:

 

·        There is nothing more important, in dealing with insurance coverage questions, then to deal with them timely and with a strategic approach;

·        Despite all the rhetoric we hear from well-meaning(?) plaintiffs' counsel, it is still very, very difficult to establish actionable bad faith in New York against liability and first party carriers;

·        Insurers, on the whole, need to pay better attention to ticking clocks and details in disclaimer letters.  The Courts are getting tougher and tougher on insurers for failing to deny claims in a timely and articulate manner;

·        Insureds and others are still obligated to notify insurers timely of accidents and claims and absent good excuse, will lose coverage if notifications are not made quickly and accurately, even without prejudice to the insurer;

·        No Fault / Serious Injury dismissal motions have made a tremendous comeback based upon recent Court of Appeals decisions.  There are 20 such decisions reviewed in this issue.  However, defense counsel and IME doctors are, occasionally, failing to present the right proof to the Court to support dismissal motions.  In that light, we are very pleased to present a guest column from our good friend and automobile insurance guru, Joel Appelbaum, New York State Corporate Claims Counsel for Progressive Insurance.  Joel watches these cases with the keen insight and trepidation (since he oversees zillions of low-impact, soft tissue cases through the state).  Do you think he cares about results?  You bet.  His column, Terror in the Courts - Judicialococcus Virus Devours Threshold Motions can be found at the bottom of this letter..

·        There is a passion among our readership for this stuff - those who love coverage cases just can't get enough of it!

 

And here's a note from Audrey Seeley, the Queen of No Fault:

 

No-Fault Trend Alert - We try to spot trends in the No-Fault world and here is a recent trend that we spotted with respect to denials for chiropractic care.  Upstate we are seeing the phrase "no rush to cut off benefits."  The arbitration awards where this phrase has popped up also reveal that around three IMEs were conducted before a particular type of treatment, not all treatment, was denied.  Again, so far we have only seen this with chiropractic care.

 

We hope you have a Happy New Year filled with clear, fully completed, and timely denials!

 

Anyway, in this week's issue, you'll find another interesting array of coverage decisions from the appellate courts.  For those attorneys reading this issue, note especially the malpractice case that will continue against a NYC law firm for an alleged failure to advise an excess carrier of possible exposure into its layer, and the subsequent loss of that coverage.  Our summaries include:

 

·        Failure to Cooperate Established

·        Excess Carrier has Duty to Disclaim After Learning of Reasons to Deny Coverage and Not After Primary Policy Exhausted (as Previously Held)

·        Text Book Case of Properly Challenging UM Claim When UM Carrier Believes Offending Motorist is Insured

·        Continued and Repeated Failure to Diagnose is Still Part of Same "Dental Incident"

·        Contractual Indemnity Obligation was Clear, So Indemnity is Awarded

·        No UM Benefits Allowed for Boat -Pedestrian Accident.  A Boat is not Part of a Car - Who Woulda Thunk?

·        "False Pretense" Coverage Claim Reinstated, When Insurer Fails to Establish Good Title

·        Appeal of Verdict in Summary Jury Trial Permitted, Where Parties Agreed that "Errors in Law" were Reviewable.

·        No Evidence that SUM Arbitrator Would be Biased so Court Properly Denied his Disqualification

·        Failure to Disclaim Properly Does Not Create Coverage if Policy Was Not in Place (or Risk Not Within Grant of Coverage) in the First Place

·        Fifty Day Delay is Disclaiming was Too Long, However Unclear Whether Certificate of Insurance "On File," So Party May Not Be Insured, After All.  Broker's Responsibility Remains Unclear as Well.

·        Stay out of Other People's Trash

·        Law Firm, Retained by Carrier to Defend Insured, Has Legal Duty to Investigate Available of Other Coverage for Client and Failure to Investigate May Give Rise to Legal Malpractice Claim

·        Hearing to Decide Uninsured Motorist Insurance Company's Application to Stay Should have Been Adjourned, When Offending Insurer Raises New Reasons for Lack of Coverage

·        "Yes, Virginia.  You CAN Win a Late Notice Case."  Notice Given to Broker is Not Notice to Insurer

·        Duty to Defend Assault, at Least for the Meantime

·        Injuries Sustained Rescuing Auto Accident Victim Do Not Arise Out of Use and Operation of Car

 

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

 

·        Plaintiff's Self-Serving Affidavit Sinks Hope of Raising a Triable Issue of Fact

·        Plaintiff's Proof of Injury Must be Contemporaneous with the Subject Accident

·        Neurologist Cannot Reach Conclusions on the Past the Basis of his Own Observations in the Present

·        Plaintiff Defeats Motion for Summary Judgment by Submitting Plethora of Evidence. 

·        Defendants' Motion is Denied as Physicians Fail to Compare Range of Motion Findings

·        Short and Sweet: Plaintiff's Appeal of Order Denied for Failure to Raise a Triable Issue of Fact

·        Not Only Must Defendant's Doctor Address Plaintiff's Claims, But Must Establish Absence of Serious Injury as Well

·        Plaintiffs Must Explain Subsequent Accidents and Gaps in Medical Treatment

·        If Surgery isn't Related to the Accident, Surgical Scar is Not Considered a Significant Disfigurement

·        Objective Medical Findings and Diagnostic Tests Enough for Plaintiff to Defeat Defendants' Motion for Summary Judgment

·        No Matter How Many Reports Plaintiff Produces, Proof Must Demonstrate Nature or Severity of the Alleged Injuries to Survive Motion for Summary Judgment

·        Plaintiff's Motion to Set Aside Verdict is Denied as Defendant's Experts Provide Ample Proof that Plaintiff did not Sustain a Serious Injury

·        Fracture Counts as a "Serious Injury" but Only if Plaintiff Raises it Right Away

·        Plaintiff Survives Motion for Summary Judgment by Showing Signs of Spine's Limited Range of Motion

·        No Need to Go to Arbitration, as Jury's Determination has Already Decided the Serious Injury Issue

·        Defendant's Medical Experts Must not just Examine Plaintiff but Address Claims as Well 

·        Plaintiff's Expert's Opinion Must Match up with Plaintiff's Treating Physician's Report (Especially When it is the Same Individual!)

·        Expert Cannot Reply Upon Unsworn Report of Another Doctor

·        Defense Doctor Needs to Test and Compare 

 

 

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]

 

·        Sorry Virginia, There Is No Pain And Suffering Recovery Under The No-Fault System.

·        An Insurer May Deny A Claim Retroactively To The Date Of Loss For The EIP's Failure To Attend An IME.

 

 

GUEST COLUMN

TERROR IN THE COURTS - JUDICIALOCOCCUS VIRUS DEVOURS THRESHOLD MOTIONS

Joel Appelbaum, Esq.

Progressive Corporate Claims Counsel

 

OK, now that I have your attention, there is a crucial legal and logistical issue that currently challenges us: to arrange for IMEs that can sustain a "threshold" Summary Judgment Motion.

 

Here are two cases from the Second Department which dismember the defense's summary judgment application because of a defective IME:

 

In the first case, Kavanagh v. Singh, decided on November 28, 2006 the IME stated that a range of motion was "full" but failed to note the objective tests that were performed to attain that result. Fatal mistake. Also, in Kavanagh, where the IME found a "normal" range of motion, the doctor never quantified the range obtained in comparison to physiologic. Call the undertaker.

 

Lastly, one IME actually found limitations in the spine...but failed to address the significance of the limitations -- that was a wasted IME fee.

 

And this brings us to McCrary v. Street, decided the same day. If the IME finds a limitation, then it must be quantified. Then, after that, the doctor must opine that the limitation is "insignificant," comparing it to the normal and the lack of impairment of actual functioning.

 

The last case is a December 14^th First Department case and a sad end to a threshold defense. In Wadford v. Cruz, the IME physician failed to address the positive diagnostic findings. That omission, in and of itself, resulted in sending to motion to the funeral home. But there was even more.

 

The plaintiff finessed his objective findings by having his doctor comment on each one, including the significance of each (especially since we are addressing discs, which, in and of themselves are not threshold busters).  Further, the plaintiff was involved in a subsequent accident. The plaintiff's doctor addressed the effects of the second accident in the form of distinguishing MRIs across time to show that the subject loss really was still problematical after accident number 2. Start digging a hole for this threshold defense.

 

STRATEGY--There's no point in paying for an IME where we have a potential threshold defense if the report is not going to provide us with the required legal foundation to support a threshold motion. After all, that is one of the primary motivators for the IME in the first place.

 

We know what the Court's have established as requirements for IME reports. This is a challenge that all of us must successfully overcome.

 

So here are some suggestions, none of which are earth-shattering, but may provide some coherence to the Motion Massacres:

 

·        Be sure the IME doctor knows that he must quantify all ranges of motion and compare them to normal.

·        If there is a deviation between the normal and the range obtained at the exam, then the doctor must indicate whether it is insignificant and, if so, provide a rationale.

·        If there are objective diagnostic findings, the doctor must address those in the report (that's why we should give the doctor the films, the EMG results, etc.)

·        It is less desirable for a doctor to characterize the range of motion as "full," but, if that is the case, then the doctor must also specify the objective testing used to find the "full" range of motion.

·        And this was not a subject of the case: if there is a 90/180 claim, the doctor must review the initial records and EBT testimony, and tests conducted during that period, to conclude that there was no "non-permanent disability."

 

The Courts have provided to us a clear guide for the inoculation against judicialococcus.

Let's all get the vaccine.

 

Joel, at the Centers for Threshold Motion Disease Control. 

 

            Thanks, Joel.  Excellent advice.  Thanks to all of our readers.  Happy New Year and see you in 2007.

 

Dan

 

 

12/26/06          Travelers Indemnity Company of America v. Pullini Water Services, Inc.
Appellate Division, Second Department

Failure to Cooperate Established
Travelers established, through affidavits of employee and of private investigators, as well as written correspondence, that it made diligent efforts to secure Pullini's cooperation, that the efforts were reasonably calculated to obtain that cooperation, and that Pullini willfully obstructed the plaintiff's defense of the underlying action. As it commenced declaratory judgment action once week after it finally gave up trying to secure its insured’s cooperation, it demonstrated entitlement to deny coverage.

 

12/26/06          Reyes v. Diamond State Insurance Company
Appellate Division, Second Department

Excess Carrier has Duty to Disclaim After Learning of Reasons to Deny Coverage and Not After Primary Policy Exhausted (as Previously Held)
Excess carrier has same obligation primary carrier does, to disclaim promptly after being placed on notice and completing investigation.  Failure of excess carrier to do so will render it unable to rely on policy exclusions or conditions as grounds to deny coverage.  Court specifically overturns one of its previous decisions, a 1999 opinion, which held that “an excess liability insurer, duty to disclaim arises a reasonable time after the primary insurance coverage has been exhausted, or the retained limit met.”

 

12/26/06          In the Matter of State Farm Ins. Co. v Colangelo
Appellate Division, Second Department

Text Book Case of Properly Challenging UM Claim When UM Carrier Believes Offending Motorist is Insured
This is how it is done properly.  State Farm received Uninsured Motorist claim, after other carrier denied coverage claiming that offending driver’s liability policy was canceled.  Within 20 days of receiving the arbitration demand, State Farm moved to permanently stay arbitration and the motion judge set the matter down for a “framed issue” hearing and joined the other carrier as a “proposed additional respondent” in order to bind it to the decision..  At the hearing, State Farm established that the other insurer did not properly cancel the policy under New Jersey law.  Accordingly, the court determined that the other insurer’s policy was in play and the UM arbitration was permanently stayed, because the claimant was no longer an uninsured motorist.

 

12/26/06          Connecticut Indemnity Company v.  Schindler

Appellate Division, Second Department|
Continued and Repeated Failure to Diagnose is Still Part of Same “Dental Incident”
Malpractice policy provided $200,000 limits per “Dental Incident.” A "Dental Incident" was defined as "an act, error or omission in the rendering or failure to render professional services as a dentist." Allegedly, the doctor continued to misdiagnose the patient over a period of time.  Each misdiagnosis was not a separate “Dental Incident” so as to give rise to yet another $200,000 in limits. Alleged departures in care when viewed in their entirety, the "same, related, repeated or continued" acts, errors or omissions in the rendering or failure to render professional services as a dentist, i.e., the failure to properly diagnose and treat.

 

12/26/06          237 W. 230 Street Realty Corp.  v. Castle Oil Corporation

Appellate Division, Second Department
Contractual Indemnity Obligation was Clear, So Indemnity is Awarded
Castle Oil Corporation (hereinafter Castle) and Old Republic Insurance Co. demonstrated their prima facie entitlement to summary judgment by establishing that the agreement between Castle and the defendant Trans Service Corporation (hereinafter Trans Service) unambiguously required the latter to indemnify Castle even if Castle was negligent and that, in any event, Castle was free of negligence in the incident giving rise to the plaintiff's claim in this action.

 

12/22/06          Matter of New York Central Mutual Fire Insurance Company v. McCleary
Appellate Division, Fourth Department
No UM Benefits Allowed for Boat –Pedestrian Accident.  A Boat is not Part of a Car – Who Woulda Thunk?
Injury occurred when a boat slipped from a trailer on a boat launch adjacent to the boat launch and struck respondent. Respondent left scene before obtaining information about identity of owner of car which was pulling trailer and then filed UM application with her own carrier, claiming owner was unknown.  The policy at issue defines an uninsured motor vehicle as one "for which . . . [n]either owner nor driver can be identified (including a hit-and-run vehicle)" and, the policy provides coverage for bodily injury caused by physical contact with an unidentified vehicle. " [P]hysical contact' occurs under the statute when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle" Here, it cannot be said that the boat was an integral part of the vehicle.

 

12/22/06          Village Import Auto Sales & Service v. Motors Insurance Corp. et al.
Appellate Division, Fourth Department
“False Pretense” Coverage Claim Reinstated, When Insurer Fails to Establish Good Title
Plaintiff alleged wrongful denial of insurance coverage with respect to seven of plaintiff's vehicles seized by the federal government. According to plaintiff, the seller of the vehicles had warranted to plaintiff that they met all domestic regulatory requirements, but a federal investigation resulted in a determination that none of the vehicles was in compliance with the regulations. Below, insurers motion for summary judgment dismissing the complaint on the ground that the loss of the vehicles was not covered by the "False Pretense Coverage" of the insurance policy. That provision applies to, inter alia, "loss of, or to, a covered auto caused by . . . [the acquisition of] an auto from a seller who did not have legal title, including an auto that is stolen, or which has a title that is counterfeit, forged, altered or is otherwise invalid."

However, in support of their motion, defendants failed to submit evidence establishing that the seller had legal title to the vehicles at issue or that title to the vehicles was not counterfeit, forged, altered or otherwise invalid. Accordingly, defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law and the Appellate Division reinstated the complaint.  In fact, the defendants offered proof suggesting that the vehicles were fraudulently imported into this country without valid certifications and that the vehicle identification numbers had been altered.

Editors Note: While summary judgment was denied, at the time of trial it should be the insured’s obligation to establish coverage, not the carrier’s obligation to establish a lack of coverage.

12/22/06          Bolis v. Fitzpatrick
Appellate Division, Fourth Department
Appeal of Verdict in Summary Jury Trial Permitted, Where Parties Agreed that “Errors in Law” were Reviewable.
The parties signed a stipulation ("Stipulation") agreeing to resolve the action by summary jury trial. According to the terms of the Stipulation, the parties agreed that their rights to move to set aside the verdict, or to appeal, would be limited to instances where the rights of the party were prejudiced by, inter alia, misconduct in procuring the award or an error of law that occurred during the course of the trial. After the jury awarded plaintiff the stipulated amount of $19,124.61 for past medical expenses, $10,000 for past pain and suffering, $5,000 for future pain and suffering, and nothing for lost earnings, both plaintiff and defendants moved to set aside the verdict in part.

Plaintiff moved to set aside the verdict awarding damages for past and future pain and suffering and to increase those awards to $30,000 and $50,000, respectively, on the grounds that those awards were "unjustified," "inadequate," "unreasonable, arbitrary and against the weight of the evidence." Alternatively, plaintiff sought a new trial on those elements of damages. Defendants opposed the motion, contending that the Stipulation did not authorize the motion on the grounds relied upon by plaintiff. Defendants then moved to set aside the verdict awarding damages for past medical expenses on the ground that those expenses did not exceed basic economic loss (see Insurance Law § 5102 [a]; § 5104 [a]). Alternatively, defendants sought to reduce the amount of the award of damages for past medical expenses by the amount plaintiff received from collateral sources, conceded by plaintiff to be $3,221.19.  

The Appellate Division holds that the stipulation does not preclude an appeal because the parties agreed that they could challenge "an error of law that occurred during the course of the trial." The lower court had held that the defendants, by a motion to set aside the verdict, have waived their right to enforce the stipulation.  However, the defendant’s agreement to stipulate to past medical expenses was a waiver of the contention that past medical expenses could not be recovered.  The Fourth Department did hold the court properly granted that part of defendants' motion seeking a reduction in the amount of the award of damages for past medical expenses to take into account the amount plaintiff received from  collateral sources.

Editor’s Note:  Summary Jury Trials have become a very popular way for litigants, particularly in the western part of the state, to resolve civil disputes.  Counsel must take particular care in crafting terms of the stipulations to be sure they are preserving just what they wish to preserve for post-trial review.  Similarly, Basic Economic Loss should not be recoverable and defense counsel must make appropriate objections to be certain all rights are preserved with respect to medical and wage loss within the categories of BEL.

 

2/22/06            Matter of Nationwide Mutual Insurance Company v. Michaels
Appellate Division, Fourth Department
No Evidence that SUM Arbitrator Would be Biased so Court Properly Denied his Disqualification
Court properly denied claimant’s application to disqualify SUM arbitrator.  No evidence that arbitrator

2/21/06            Lutheran Social Services of Metro. New York, Inc., v. Guide One Insurance
Appellate Division, First Department
Failure to Disclaim Properly Does Not Create Coverage if Policy Was Not in Place (or Risk Not Within Grant of Coverage) in the First Place
Insured was a foster care agency who sought litigation expenses from carrier.  Agency had been sued by an adopting couple who had alleged that insured failed to notify couple that adopted children had tested positive for HIV.  There was, however, nothing in the record to establish that in fact insurance coverage was in place at the time when the couple’s claim allegedly arose.  Therefore, it makes no difference whether carrier’s disclaimer was worded properly because an insurer cannot create coverage by failing to disclaim properly when policy not in place.  Under Insurance Law Section 3420(d), waiver of exclusions is possible for untimely or improper disclaimer but disclaim isn’t even necessary if coverage doesn’t exist in the first instance.

 

Editor’s Note:  First Department correctly restates rule.  In bodily injury or property damage cases, late or improperly worded disclaimers cannot create coverage where none exists in the first place.  Delay in promptly disclaiming properly can be fatal to carrier’s reliance on breach of policy conditions (notice, cooperation, etc.) and equally toxic to insurer’s right to rely on policy exclusions.  However, it cannot create coverage is none existed in the first instance.

We do note that there was another, separate and distinct reason that insurer should have been successful here.  Courts and litigants often forget that requirements for prompt and proper disclaimer, established by Section 3420(d) apply only to bodily injury and wrongful death cases, and not to others.  This case was not a claim for bodily injury or wrongful death and accordingly Section 3420(d) was not applicable at all, even if this case was based on policy exclusion.

12/21/06          Gotham Const. Company, LLC v. United National Insurance Company

Appellate Division, First Department
Fifty Day Delay is Disclaiming was Too Long, However Unclear Whether Certificate of Insurance “On File” So Party May Not Be Insured, After All.  Broker’s Responsibility Remains Unclear as Well.
Fifty day delay in denying coverage too late, where carrier had no reason to conduct investigation once placed on notice of accident.  However, questions of fact existed as to whether Certificate of Insurance was “on file” with carrier as policy endorsement required.  Broker remains in suit as well as issue of fact exist whether it was authorized to issue the certificate of insurance naming plaintiffs as additional insureds, and whether the broker ever submitted that certificate to carrier or its agent.

 

12/21/06          Stepcic v. ADC Construction
Appellate Division, Third Department
Stay out of Other People’s Trash
A rare report on a Workers Compensation case (since so few of our readers appear to have an abiding interest in following that case law here). Claimant's decedent was employed as a laborer to follow behind an asphalt-ripping machine, pick up pieces of asphalt and place them on the side of the road for subsequent removal. During work, decedent noticed a dumpster containing construction debris from an unrelated work site. Decedent removed what initially appeared to be a piece of steel but was actually a shotgun from a box on top of the dumpster and showed it to a coworker. The shotgun then discharged, fatally wounding him.  Court upholds Workers Compensation Board decision that activity, injury and death were not within scope of employment.  The dumpster had nothing to do with the decedent’s employment

 

12/19/06          Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

Appellate Division, Second Department
Law Firm, Retained by Carrier to Defend Insured, Has Legal Duty to Investigate Available of Other Coverage for Client and Failure to Investigate May Give Rise to Legal Malpractice Claim
A very interesting by a divided panel.  The majority holds that a law firm retained by a carrier has a duty to ascertain whether the insured it was hired to represent has available excess coverage, and, perhaps to file a timely notice of excess claim on the insured's behalf. Court basically holds that defense counsel hired by carrier has same duty to insured as counsel hired directly by insured. That may include the obligation to investigate the availability of insurance coverage for his or her client and to see that timely notices of claim are served.  A failure to investigate the existence of excess insurance coverage may give rise to a legal malpractice action against an attorney retained directly by a defendant in a personal injury action or one retained by its carrier. Accordingly, the defendant's pre-discovery motion to dismiss the cause of action sounding in legal malpractice should have been denied.

Editor’s Note:  While some of my defense colleagues may throw daggers my way, I agree with the majority’s view of this.  Defense counsel retained to defend an insured should have an obligation to explore other insurance that may be available to help his or her client.  This requires that defense counsel have some understanding of where coverage may be found and then actually help the insured look for it.

 

12/19/06          In the Matter of Allstate Insurance Company v. Joseph

Appellate Division, Second Department
Hearing to Decide Uninsured Motorist Insurance Company’s Application to Stay Should have Been Adjourned, When Offending Insurer Raises New Reasons for Lack of Coverage

This case involved a motion to stay an uninsured motorist arbitration application, demanded by Joseph and Aime.  Allstate claimed that the other vehicle involved in the accident had valid insurance with State Farm.  State Farm acknowledged that it insured the other car and its owner Prepetit and its driver Aportordie but argued that it disclaimed coverage on the basis of late notice of the occurrence.  A hearing was schedule to test the late notice disclaimer and State Farm called the owner to the stand.  She testified that she did not provide timely notice because she was unaware the accident occurred, having left the car with a friend on 11/23/03 for the purpose of disposing it.  The accident occurred in early January 2004.  The owner also testified that she didn’t know Aportordie and never gave him permission to driver the car.  The Court found that the State Farm policy was not applicable because of the lack of permissive use and Allstate’s application was denied.

 

The issue of “permissive use” had not been raised before in any pleadings and Allstate wanted time to investigate that claim.  The Court denied the application and Allstate appealed, arguing since it did not have notice of the permissive use issue, the court should not have decided the motion on that ground. The appellate court agreed with Allstate’s contention that it should have been allowed a chance to conduct some investigation on the permissive use issue, since a brief delay would not have been prejudicial and they were justifiably surprised at the hearing on this issue.

 

12/19/06          Tower Ins. Co. of New York v. Mike's Pipe Yard and Building Supply Corp.
Appellate Division, First Department

“Yes, Virginia.  You CAN Win a Late Notice Case.”  Notice Given to Broker is Not Notice to Insurer
Guzman, was injured in June 2003 while performing construction work in the insured building. The insured was immediately informed of the incident.  Excuse offered for late notice was that Guzman did not appear to be seriously injured and he indicated he would not be filing a Workers' Compensation claim. However, Guzman was out of work for two months and was paid diminished wages and when he did return, he still complained of pain.  When he returned to work, he advised he would be filing a Workers' Compensation claim, at which point the insured orally informed its broker of the incident. The insured claims it never had any direct dealings with plaintiff, and assumed the broker was plaintiff's agent. Insurer did not have a principal-agent relationship with the broker. Broker didn’t send notice to insurer.

 

Guzman commenced the underlying personal injury action in July 2004 and following month, now 14 months after the occurrence, the insured sent the summons and complaint to its broker, which forwarded it to insurer (its first notice of accident).  Disclaimer 30 days later for late notice upheld. No valid excuse for late notice and notice to broker is not deemed notice to insurer because broker not agent of insurer but of insured.

 

Editor’s (Personal) Note:       Attaboy, Max.

 

12/19/06          Love Picin, Inc., trading as The Coyote Ugly Saloon v. Certain Interested Underwriters at Lloyd's, London

Appellate Division, First Department

Duty to Defend Assault, at Least for the Meantime
Obligation to defend fight case even in light of assault and battery exclusion of the insurance policies. Until the facts of the underlying action are established, it cannot be concluded as a that there is no possible factual or legal basis on which insurer might eventually be held obligated to indemnify.

 

12/12/06          Zaccari v. Progressive Northwestern Insurance Co.
Appellate Division, Second Department
Injuries Sustained Rescuing Auto Accident Victim Do Not Arise Out of Use and Operation of Car

Plaintiff, was traveling on Interstate 87 when he observed a speeding automobile lose control, leave the highway, and crash. After the automobile crashed, he saw it burst into flames. He ran to the scene and pulled the driver from the burning car. Allegedly as a result of the rescue, the plaintiff injured his back

 

In the context of automobile liability insurance coverage, "whether an accident has resulted from the use or operation of a covered automobile requires consideration of a three-part test: 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury'" Negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury'. Since the automobile was stationary for some undetermined period of time before the plaintiff arrived on the crash scene and the vehicle itself did not caused the plaintiff to injure his back, but, use of the vehicle was not a substantial factor in bringing about the injury.

 

Court rejects argument that denial of coverage was late because if no grant coverage in place for accident, late notice does not create coverage,

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

 

 

12/26/06          Doyaga v. Teleeba, Inc.

Appellate Division, Second Department

Plaintiff’s Self-Serving Affidavit Sinks Hope of Raising a Triable Issue of Fact

Court affirms order which granted defendants’ motion for summary judgment. The defendants met their respective prima facie burdens on their motions for summary judgment demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The affidavit of the plaintiffs’ treating physician was insufficient to establish the existence of a serious injury since it relied on the unsworn reports of other doctors. In the absence of any objective medical evidence that plaintiff sustained a serious injury, his self-serving affidavit was insufficient to raise a triable issue of fact .

 

12/26/06          Elder v. Stokes

Appellate Division, Second Department

Plaintiff’s Proof of Injury Must be Contemporaneous with the Subject Accident

Defendant’s established prima facie entitlement to judgment as a matter of law that plaintiff did not sustain a serious injury. In response, plaintiff failed to raise a triable issue of fact. While the affirmed medical report of the plaintiff's examining physician noted limitations in the plaintiff's range of motion of his cervical and lumbar spine, based on a recent examination, this report failed to provide any medical proof that was contemporaneous with the subject accident that showed range of motion limitations in his spine.

 

12/26/06          Flores v. Stankiewicz

Appellate Division, Second Department

Neurologist Cannot Reach Conclusions on the Past the Basis of his Own Observations in the Present

Court reverses Lower Court’s Order denying defendants’ Motion for Summary Judgment as plaintiff fails to raise a triable issue of fact. The conclusions reached by the plaintiff’s neurologist on the basis of his own observations and the magnetic resonance imaging report submitted by the plaintiff, which, although uncertified, was properly considered because it was relied upon by the defendants, were insufficient to raise a triable issue of fact as to the existence of a serious injury within the meaning of the statute. A bulging or herniated disc is not evidence of serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.

 

12/26/06          Holley v. Salsa, Inc.

Appellate Division, Second Department

Plaintiff Defeats Motion for Summary Judgment by Submitting Plethora of Evidence.

Court affirms order which denied defendants’ motion for summary judgment. Here, defendant made a prima facie showing that plaintiff did not sustain a serious injury. In response, Plaintiff submitted an affirmation from her treating physician specifying the decreased range of motion in her lumbar and cervical spines as evidenced by objective findings made shortly after the subject accident, as well as on a recent examination, along with evidence of herniated discs and disc bulges as confirmed by his reading of magnetic resonance imaging films. The plaintiff's treating physician also asserted that the plaintiff's injuries were permanent and causally related to the subject motor vehicle accident.

 

12/26/06          Holtzman v. Bishop

Appellate Division, Second Department

Defendants’ Motion is Denied as Physicians Fail to Compare Range of Motion Findings

Defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury. While the defendants' examining orthopedist set forth his range of motion findings concerning the plaintiff's lumbar spine in his affirmed medical report, he failed to compare those recorded ranges of motion with normal ranges of motion. Further, the defendants' examining neurologist and orthopedist each examined the plaintiff more than four years post-accident. Although both doctors stated that she was not disabled when they examined her, neither doctor addressed the possibility that she had a medically-determined injury or impairment immediately following the accident that affected her activities during the 180 days immediately following the accident.

 

12/26/06          Orna v. Singh

Appellate Division, Second Department

Short and Sweet: Plaintiff’s Appeal of Order Denied for Failure to Raise a Triable Issue of Fact

Court affirms order which granted defendants’ motion for summary judgment. Here, Court pointedly stated its findings as follows: “The defendants established their prima facie burden on their motion, via their submissions, 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. In opposition, the plaintiff failed to raise a triable issue of fact.”

 

12/26/06          Pijuan v. Brito

Appellate Division, Second Department

Not Only Must Defendant’s Doctor Address Plaintiff’s Claims, But Must Establish Absence of Serious Injury as well

Plaintiff appealed Lower Court’s decision which granted defendant’s motion for summary judgment. Appellate Division reversed, stating that defendant never addressed the claim that the plaintiff sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The defendant's examining orthopedist evaluated the plaintiff on March 14, 2005, almost four years after the accident. Although he stated that the plaintiff was not disabled when he examined the plaintiff, he never addressed the possibility that the plaintiff had a medically-determined injury or impairment immediately following the subject accident that affected his activities during the 180 days immediately following the accident. The affirmed medical report of the defendant's examining radiologist also did not establish the absence of a serious injury under this category of Insurance Law § 5102(d).

 

12/26/06          Zinger v. Zylberberg

Appellate Division, Second Department

Plaintiffs Must Explain Subsequent Accidents and Gaps in Medical Treatment

Court reversed Lower Court’s Order; thus granting defendant’s motion for summary judgment dismissing the complaint. While the affirmed medical reports of the plaintiffs’ examining physician showed limitations in the range of motion of the respective plaintiffs’ cervical and lumbar spines based on recent examinations, the plaintiffs failed to proffer any medical evidence that was contemporaneous with the subject accident that showed a limitation in their range of motion. Their examining physician also failed to acknowledge the fact that both plaintiffs were involved in an auto accident in 2003, which occurred subsequent to the subject accident and before he examined them. Thus, his findings were speculative that the spinal injuries they allegedly sustained were caused by the subject accident. The plaintiffs also failed to explain their gaps in treatment.

 

12/22/06          Kilmer v. Strek

Appellate Division, Fourth Department

If Surgery isn’t Related to the Accident, Surgical Scar is Not Considered a Significant Disfigurement

Plaintiffs’ allegation of serious injury under the significant disfigurement category is based upon a surgical scar resulting from surgery to repair cervical disc herniation allegedly caused by the accident. Defendant met her burden on the motion by presenting evidence establishing that plaintiff's alleged injury preexisted the accident, the accident did not aggravate that injury and surgery was necessitated by the preexisting condition. The opinion of plaintiffs’ expert that 10% of the need for surgery is attributable to the accident and 90% to plaintiff's preexisting condition has no objective medical basis and is therefore insufficient to raise an issue of fact.

 

12/22/06          Flanagan v. Klein

Appellate Division, Fourth Department

Objective Medical Findings and Diagnostic Tests Enough for Plaintiff to Defeat Defendants’ Motion for Summary Judgment

Lower court’s decision to dismiss plaintiff’s complaint is modified and denied as it relates to two categories of serious injury: (1) significant limitation of use and (2) permanent consequential limitation of use. Defendants met their initial burden by submitting affidavit of physician who examined plaintiff. That physician opined that plaintiff has no ongoing disability or medical restrictions that are causally related to the accident. In opposition, however, plaintiff submitted medical evidence containing objective medical findings and diagnostic tests indicating that plaintiff sustained a qualifying injury (see Tankersley v Szesnat, 235 AD2d 1010, 1012), including physician reports, chiropractic records, MRI reports, and an affidavit from his treating chiropractor. That evidence was enough to raise a triable issue of fact.

 

12/21/06          Ali v. Korostelev

Appellate Division, First Department

No Matter How Many Reports Plaintiff Produces, Proof Must Demonstrate Nature or Severity of the Alleged Injuries to Survive Motion for Summary Judgment

Defendant’s medical affirmations were enough to sustain Defendant’s burden of establishing that plaintiff had not met the “serious injury” threshold. In response, plaintiff submitted an affirmation from his treating physician, an affirmation from a radiologist, hospital records, a sworn MRI report, and his own affidavit. However, these documents, viewed individually and collectively, failed to demonstrate that the nature or severity of the shoulder and spinal injuries sustained by plaintiff met the serious injury threshold. Accordingly, the complaint was dismissed.

 

12/21/06          Fallon v. Esposito

Appellate Division, Third Department

Plaintiff’s Motion to Set Aside Verdict is Denied as Defendant’s Experts Provide Ample Proof that Plaintiff did not Sustain a Serious Injury

After jury found in defendant’s favor at trial, plaintiff appealed. Evidence showed there was a low-speed accident in which damage to plaintiff’s vehicle was confined to rear bumper. Plaintiff’s medical proof included an MRI which revealed a disc bulge at L4-L5 and disc herniations at C5-6 and C6-7. Their expert testimony tied these conditions to the accident and to physical limitations that plaintiff claimed to be experiencing. Meanwhile, defendants’ expert testified that, based on his examination of plaintiff and review of plaintiff's medical records including his MRI films, it was his opinion that the bulging and herniated discs were caused by a progressive degenerative condition. Faced with conflicting medical evidence, jury sided with defendants’ expert. As such, Court decided to not disturb the jury’s determination.

 

12/19/06          Agha v. Alamo Rent A Car

Appellate Division, Second Department

Fracture Counts as a “Serious Injury” but Only if Plaintiff Raises it Right Away

The Court held while a fracture constitutes a serious injury, plaintiff’s treating physician’s affidavit is insufficient to satisfy the plaintiff’s obligation on the motion because it was submitted for the first time in reply. On the other hand, the report of the plaintiff's treating chiropractor, who examined the plaintiff several days after the subject accident, did establish limitations in the plaintiff's thoracolumbar spine range of motion and the report of the plaintiff's treating physician noted fractures in the plaintiff's cervical spine. The defendants' submission of these documents precluded a finding that they were entitled to judgment dismissing the complaint as a matter of law.

 

12/19/06          D’Onofrio v. Arsenault

Appellate Division, Second Department

Plaintiff Survives Motion for Summary Judgment by Showing Signs of Spine’s Limited Range of Motion

Second Department held defendant failed to establish prima facie entitlement to judgment. The affirmed medical report of the defendant's examining neurologist indicated the existence of limitations in the range of motion of the plaintiff's lumbar spine. Given such, the Court found it unnecessary to consider whether the plaintiff's papers submitted in opposition to the defendant's motion were sufficient to raise a triable issue of fact.

 

12/19/06        Grobman v. Chernoff

Appellate Division, Second Department

No Need to Go to Arbitration, as Jury’s Determination has Already Decided the Serious Injury Issue

Order compelling plaintiff to attend arbitration on the issue of whether she sustained a serious injury is reversed. After a bifurcated trial, the court concluded that the jury's verdict finding that the plaintiff had sustained a permanent serious injury could not be reconciled with the failure to award her damages for future pain and suffering. As such, the court remitted the matter solely for a new trial on the issue of damages. The parties thereafter agreed to submit the issue of damages to arbitration, but a dispute arose as to whether the arbitration should encompass the issue of serious injury. Court subsequently held the jury’s determination that the plaintiff sustained a serious injury, which the defendants failed to challenge on appeal, constituted a final and binding determination of this issue, especially in light of its award of future medical expenses. Accordingly, the issue of whether the plaintiff sustained a serious injury may not be relitigated in arbitration.

 

12/19/06          Jocelyn v. Singh Airport Serv.

Appellate Division, Second Department

Defendant’s Medical Experts Must not just Examine Plaintiff but Address Claims as Well

The Court reversed Lower Court’s granting of defendant’s motion for summary judgment. Both defendants failed on their separate motions for summary judgment in that their medical experts never addressed plaintiff’s claim set forth in the verified bill of particulars. That claim was that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. Defendants’ respective physicians each first examined the plaintiff more then three years after the accident. Although all of the physicians stated that the plaintiff was not disabled when they examined her, none of them addressed the possibility that she had a medically determined injury or impairment immediately following the accident that affected her activities during the 180 days immediately following the accident.

 

12/19/06          O’Bradovich v. Mrijaj

Appellate Division, First Department

Plaintiff’s Expert’s Opinion Must Match up with Plaintiff’s Treating Physician’s Report (Especially When it is the Same Individual!)

Court unanimously affirmed defendants’ successful for summary judgment order dismissing plaintiff’s complaint for failure to sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff’s expert opined that the accident caused a fracture of her calcaneus (the heel bone adjacent to the ankle.) Yet, there is no admissible evidence that she was ever diagnosed by her treating physician with a fracture that resulted from this accident. The operative report makes no mention of a fracture, nor does plaintiff’s expert (also her treating physician) refer to such a fracture in his initial evaluation of plaintiff approximately four months after the accident.

 

12/19/06  Olson v. Russell

Appellate Division, Second Department

Expert Cannot Reply Upon Unsworn Report of Another Doctor

While plaintiff’s appeal had a number of deficiencies, Court stated that plaintiffs failed to raise a triable issue of fact after the defendant made a prima facie showing that the plaintiff did not sustain a serious injury. In summary, the affirmation of the plaintiffs’ examining orthopedic surgeon set forth range of motion findings that were compared to the normal range of motion and based on objective testing, but it is unclear from that affirmation whether those findings were based on recent examinations of the injured plaintiff. Further, it is clear that the plaintiff’s treating orthopedic surgeon relied on the unsworn report of another doctor in reaching his conclusions. Without any objective evidence of serious injury, the injured plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether she sustained a serious injury.

 

12/19/06           Russo v. Cooke

Appellate Division, Second Department

Defense Doctor Needs to Test and Compare

Plaintiff’s claims that she injured her lower back in the subject accident and a magnetic resonance imaging scan indicated a disc herniation at L4-5. However, the affirmed medical report of the defendants’ examining neurologist did not reflect that he ever tested the range of motion of that region of the plaintiff's body, although he did test the range of motion of the plaintiff's cervical spine. As such, Court reversed the defendant’s motion for summary judgment dismissing the complaint.

 

Audrey’s Angle on No-Fault

 

The reporting of No-Fault arbitration awards is not at the same level of reported case law, meaning there is no one source to turn to for comprehensive research of arbitration awards.  We encourage you to submit to us, in a PDF format, at [email protected], any recent no-fault arbitration awards, especially Master Arbitration awards, that address interesting no-fault issues. 

 

12/23/06          In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Mary Anne Theiss, Esq. (Onondaga County)               

Sorry Virginia, There Is No Pain And Suffering Recovery Under The No-Fault System.

 

Here is the Angle:  This is just a fun read around the holidays and just goes to show just because it’s the holiday season does not mean that an Arbitrator’s judgment is clouded.

 

The Analysis:  The Applicant, eligible injured person, sought to recover $369,677.03 (yes three cents) as a result of a December 10, 2001, motor vehicle accident in Connecticut.  The accident purportedly was a three-car chain reaction.  The police report did not indicate that the Applicant complained of any injuries at the accident scene.  Thereafter, the Applicant continued to drive three hours home to New York from the accident scene.

 

The Applicant sought medical treatment the day after the accident complaining of being anxious and not having slept in four days (sniff, sniff).  The Applicant testified that she has problems with her gall bladder, a hiatal hernia, bladder problems, reflux disease, bilateral leg pain, right foot osteocondesio (this word has stumped my nurse paralegals, Yahoo, and Google), as well as other unspecified problems.  There was no evidence that the Applicant’s physicians causally related these problems to the accident.  The Applicant was heard to have stated about the accident “This was the point in time where everything changed.  ….all of her problems are due to the automobile accident.”

 

As a result of her trauma the Applicant sought to recover lost wages she incurred 4 ½ years post accident, medical expenses that were reimbursed by Medicaid, $60,000 for her college education (I’m not making this up), and (here’s my favorite) $250,000 in personal injury for herself and her children due to the pain and suffering everyone experienced as a result of the December accident.  I note that the Applicant was pro-se.

 

Arbitrator Theiss initially noted that the Applicant is precluded from recovering for pain and suffering in this forum.  Moreover, the Applicant’s policy limits were $50,000 for basic economic loss.  Further, Applicant’s statement regarding the cause of her life problems is not sufficient to meet the burden in a no-fault case.

 

12/21/06          Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co.                

An Insurer May Deny A Claim Retroactively To The Date Of Loss For The EIP’s Failure To Attend An IME.

 

Here is the Angle:  When an eligible injured person violates a condition precedent to coverage under the policy by failing to appear for an independent medical examination there is no distinction made between treatment rendered before and after the condition was violated to permit a medical provider to be paid for services rendered. 

 

The Analysis:  The insurer moved for summary judgment on the ground that by the eligible injured person (“EIP”) failing to appear for an independent medical examination (“IME”) she breached a condition precedent to payment under the policy thereby barring plaintiff’s, medical provider, claim.  The plaintiff cross-moved for summary judgment on the ground that even if the EIP failed to appear for the IME it is still entitled to payment as the charges were incurred before the EIP’s failure to appear for the IME.

 

The appellate court held that the insurer was not entitled to summary judgment because it failed to meet its initial burden of demonstrating that the IME notices were mailed to the EIP and that the EIP failed to appear.  There was no evidence in affidavit form of mailing practices for IME notices or that the EIP failed to appear.

 

Further, the appellate court held that the plaintiff’s cross-motion should have been denied as there is no distinction between submission of a claim before or after an EIP’s failure to appear for an IME.  The insurance regulations require an EIP to appear for an IME at any time as a condition precedent to the insurer’s liability on the policy.  Accordingly, an insurer may deny a claim retroactively to the date of loss for the EIP’s failure to attend an IME.

 

12/18/06          In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)
Denial Upheld Because Insurer Did Not Rush To Cut Off Chiropractic Benefits.

 

Here is the Angle:  This is a new trend that I am seeing in arbitrations, particularly with chiropractic benefits.  The Arbitrator found that the insurer did not rush to cut off chiropractic benefits as it conducted three independent medical examinations (“IME”) over the course of nine months.

 

The Analysis:  The Applicant, eligible injured person, a 51-year old female, was involved in a July 27, 2004, motor vehicle accident.  Soon after the accident she came under the care of Gaiser Chiropractic.

 

The insurer denied chiropractic care based upon the IMEs of Gary J. Kostek, D.C.  The first IME was conducted on March 31, 2005, with the recommendation of continued chiropractic care at a frequency of 2 times per week for 4-6 weeks.  The second IME was conducted on August 4, 2005, with the recommendation of continued chiropractic care at a frequency of one time per week for 8 weeks.  The third IME was conducted on November 2, 2005, with the recommendation of no further chiropractic care due to the Applicant have a remote chance of further improvement with continued care.

 

Arbitrator McCorry noted that Mr. Kostek’s report never closes the door on other types of treatment, just chiropractic care.  Arbitrator McCorry found:

 

Based on the three separate evaluations it appeared to me that Chiropractor Kostek did not rush to cut off chiropractic care.  His approach appeared to be reasonable and I found his reports to be persuasive.  I conclude therefore that the Respondents (sic) denials were appropriate.

.

 

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.

 

 

12/26/06          Parks Real Estate Purchasing Group v. St. Paul Fire and Marine Ins.Co.
Second Circuit Court of Appeals
Contamination Exclusion in Commercial “All Risk” Insurance Policy Ambiguous and May Not Exclude Coverage to Building Damaged on 9/11.
 Plaintiff sued insurance carrier for losses suffered in the wake of the collapse of the World Trade Center, when dust made building unusable. Insurance carrier claimed that the loss was excluded under the contamination exclusion in the policy. The Court of Appeals reversed summary judgment in favor of the insurance carrier, saying that the contamination exclusion was ambiguous and broad, and therefore not a basis to exclude coverage.

Submitted by: Mark Gesk and Ian Walchesky of Wayman, Irvin, & McAuley, LLP –

 

12/26/06          Blood v. Kenneth A. Murray Insurance, Inc.
Supreme Court of Alaska
Insurer Owes No Non-statutory Duty of Care and Due Diligence to Inform Insured of Terminated Coverage.
Insurer terminated Plaintiff’s auto coverage for failure to pay premiums. Following an accident, Plaintiff sued for a declaration of coverage and damages. Plaintiff argued that the insurer breached its duty to inform him of termination. Insurer sent notice to Plaintiff’s last known address, but Plaintiff alleged that insurer was negligent in attempts to locate him. The Supreme Court of Alaska held that the lower court erred in imposing a non-statutory duty to inform the insured that his coverage was terminated.

Submitted by: Mark Gesk and Ian Walchesky of Wayman, Irvin, & McAuley, LLP -

12/26/06          Liberty Mutual Ins. Co. v. Graham
Fifth Circuit Court of Appeals
Duty to Defend Triggered, and Consideration of Extrinsic Evidence to Determine said Duty was Deemed Inappropriate
Liberty Mutual Insurance Company filed a declaratory relief action seeking a declaration that it was under no duty to defend an individual defendant (Graham) against an underlying automobile/personal injury tort suit. Graham claimed that he was an insured under an automobile policy Liberty issued to Graham’s employer through the permissive-user or omnibus clause contained in that policy. Graham argued that Liberty owed him a defense because, under Texas’ eight-corners rule, the insurer’s duty to defend is to be determined solely from the terms of the insurance policy and the underlying pleadings. Here, Graham argued, the underlying complaint alleged permission and the policy covers permissive drivers; thus, Liberty’s duty to defend was triggered. Liberty argued that the complaint did not allege permissive use, and even if it did, this case justified an exception to the eight-corners rule and considering extrinsic evidence was appropriate because such evidence related solely to a coverage determination. The lower court concluded that consideration of extrinsic evidence was proper in this case for the reasons asserted by Liberty, and concluded that Liberty was under no duty to defend Graham. The Fifth Circuit disagreed. On appeal, the Fifth Circuit stated that Texas law required it to consider the allegations in the complaint along with any reasonable inferences that flow from the facts alleged. Doing so, the Fifth Circuit determined that it was reasonable to infer that the underlying plaintiffs asserted that Graham was driving the vehicle in question with his employer’s permission at the time of the accident. Further, the Fifth Circuit determined that the narrow exception to the eight-corners rule was inapplicable to this matter, and consideration of extrinsic evidence was not appropriate. As such, among other things, the Fifth Circuit held that Liberty had a duty to defend Graham against the underlying action.

Submitted by: Bruce D. Celebrezze & Michelle M. Hancharik [Sedgwick, Detert, Moran & Arnold, LLP] - Posted: 12/27/2006

 

 

 

 

 

 

CASES IN FULL TEXT

 

Zaccari v. Progressive Northwestern Insurance Co.

 

Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo of counsel), for
appellant.
Huttner, Berson & Budashewitz, P.C., New York, N.Y. (Jeffrey
A. Berson of counsel), for respondent.

 

DECISION & ORDER

In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the defendant appeals (1) from a judgment of the Supreme Court, Kings County (Jones, J.) entered January 20, 2006, which, upon an order of the same court dated December 28, 2005, denying the defendant's motion for summary judgment dismissing the complaint and granting the plaintiff's cross motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $404,507.50, and (2), as limited by its brief, from so much of an order of the same court dated May 1, 2006, as denied that branch of its motion which was, in effect, for leave to renew.

ORDERED that the judgment is reversed, on the law, the defendant's motion is granted, the plaintiff's cross motion is denied, the complaint is dismissed, and the order dated December 28, 2005, is modified accordingly; and it is further,

ORDERED that the appeal from the order dated May 1, 2006, is dismissed as academic in light of our determination on the appeal from the judgment entered January 20, 2006; and it is further,

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

On September 20, 2001, the plaintiff, Peter Zaccari, was traveling southbound on Interstate 87 when he observed a speeding automobile lose control, leave the highway, and crash. After the automobile crashed, he saw it burst into flames. He ran to the scene and pulled the driver from the burning car. Allegedly as a result of the rescue, the plaintiff injured his back. Approximately one year and two months later, the plaintiff commenced an action to recover for his personal injuries against the owner and driver of the crashed vehicle. A copy of the summons and complaint was forwarded by the owner of the vehicle to her automobile insurance carrier, the defendant Progressive Northwestern Insurance Co. (hereinafter Progressive). Progressive disclaimed coverage 49 days later on the basis that the plaintiff's injuries did not arise out of the use of the motor vehicle and because it did not receive timely notice of the claim. No answer was interposed in the underlying personal injury action. Thereafter, a default judgment was awarded to the plaintiff. Following an inquest on the issue of damages, a judgment in the principal amount of $350,000 was entered against the owner and driver of the subject automobile and in favor of the plaintiff.

A copy of the judgment was served on Progressive. Pursuant to Insurance Law § 3420(a)(2), after 30 days elapsed and the judgment had not been satisfied by Progressive, this action was commenced, seeking to collect the unsatisfied judgment from Progressive. Progressive moved for summary judgment dismissing the complaint, contending that both grounds for its disclaimer of coverage were valid. The plaintiff cross-moved for summary judgment, asserting that since his injuries arose out of the negligent use of Progressive's insured's automobile, there was coverage and, in any event, Progressive's disclaimer was invalid as it was not timely made. The Supreme Court denied Progressive's summary judgment motion and granted the cross motion solely on the basis that a 49-day delay in providing a notice of disclaimer was untimely as a matter of law. Subsequently, a judgment in the principal sum of $404,507.50 was entered against Progressive. Progressive then moved to modify and limit the judgment to $100,000, which was the applicable limit of the insurance policy. Treating Progressive's application, inter alia, as a motion, in effect, for leave to renew, the Supreme Court denied the motion since Progressive failed to explain why it had never produced a copy of its policy or even argued that the judgment sought exceeded its policy limits in the previous summary judgment motion and cross motion.

On its motion for summary judgment, Progressive met its initial burden of establishing that the subject insurance policy's coverage was limited to accidents arising out of the use or operation of the motor vehicle. Contrary to the determination of the Supreme Court, the fact that Progressive may have delayed 49 days in denying coverage on this basis is immaterial as "[t]imely notice of intent to disclaim pursuant to Insurance Law § 3420(d) is unnecessary when a claim does not fall within the coverage terms of an insurance policy" (Matter of Government Empls. Ins. Co. v Spence, 23 AD3D 466, 467; see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648; Zappone v Home Ins. Co., 55 NY2d 131). Accordingly, the Supreme Court should have decided whether the plaintiff's injuries arose from the use or operation of the insured automobile.

In the context of automobile liability insurance coverage, "whether an accident has resulted from the use or operation of a covered automobile requires consideration of a three-part test: 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury'" (U.S. Oil Ref. & Mktg. Corp. v Aetna Cas. & Sur. Co., 181 AD2d 768, 768-769, quoting 6B Appleman, Insurance Law and Practice § 4317, at 367-369; see also Goetz v General Acc. Fire & Life Assur. Corp., 47 Misc 2d 67, 69, affd 26 AD2d 635, affd 19 NY2d 762). " Although the [vehicle] itself need not be the proximate cause of the injury . . . [n]egligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury'" (Somers Cent. School Dist. v Lumbermens Mut. Cas. Co., 6 AD3d 606, 607, quoting Progressive Cas. Ins. Co. v Yodice, 276 AD2d 540 [internal quotation marks omitted]; see Empire Ins. Co. v Schliessman, 306 AD2d 512, 513; Eagle Ins. Co. v Butts, 269 AD2d 558, 559). To be a cause of the injury, the use of the motor vehicle must be "closely related" to the injury (Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643, 644). Also, the injury must result from the intrinsic nature of the motor vehicle as such and the use of the automobile must do more than merely contribute to the condition which produced it (see Republic Long Is. v Andrew J. Vanacore, Inc., 29 AD3d 665, 666; see also Ely v Pierce, 302 AD2d 489).

Here, Progressive also met its initial burden of showing that the plaintiff's injuries were not covered under the use and operation clause of its policy. The automobile was stationary for some undetermined period of time before the plaintiff arrived on the crash scene. It was not the vehicle itself which caused the plaintiff to injure his back, but, in the plaintiff's words, it was the act of "rescuing" the driver. At best, any negligent use of the automobile only contributed to the condition which ultimately resulted in the plaintiff's back injury. Use of the vehicle was not a substantial factor in bringing about the injury (see PJI 2:70).

In opposition the plaintiff failed to raise a triable issue of fact. No proof was offered, nor did the plaintiff even contend, that Progressive's policy was not limited to accidents arising out of the use or operation of the vehicle. Additionally, his four-paragraph affidavit failed to set forth exactly what caused his injury, other than the "rescue," or when during the rescue the injury actually occurred. Consequently, Progressive's motion for summary judgment should have been granted, the cross motion denied, and the complaint dismissed.

The parties' remaining contentions either have been rendered academic or need not be reached in light of our determination.

PRUDENTI, P.J., SCHMIDT, DILLON and COVELLO, JJ., concur.

 

Love Picin, Inc., trading as The Coyote Ugly Saloon v. Certain Interested Underwriters at Lloyd's, London

Querrey & Harrow, Ltd., New York (Thomas J. Bracken of
counsel), for appellant.
Gersten Savage LLP, New York (Steven R. Popofsky of
counsel), for respondent.

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered January 9, 2006, as corrected by order entered March 2, 2006, which denied defendant's motion to dismiss the complaint for failure to state a cause of action, granted plaintiff's cross motion for partial summary judgment, and ordered defendant to defend plaintiff in the underlying personal injury action until further order of the court determining whether the evidence in that action brought the claims within the assault and battery exclusion of the insurance policies, unanimously affirmed, without costs.

The court correctly ruled that until the facts of the underlying action are established, it cannot be concluded as a matter of law that there is no possible factual or legal basis on which defendant might eventually be held obligated to indemnify plaintiff under any provision of the insurance policies (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 424 [1985]).

Tower Insurance Company of New York v. Mike's Pipe Yard and Building Supply Corp.,

 

Law Office of Max W. Gershweir, New York (Max W.
Gershweir of counsel), for appellant.
Apuzzo & Chase, New York (William J. Apuzzo of counsel),
for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered June 5, 2006, which denied plaintiff's motion for summary judgment, unanimously reversed, on the law, with costs, and the motion granted, and it is declared that plaintiff has no duty to defend or indemnify in connection with the underlying personal injury action.

Plaintiff issued a liability insurance policy to defendant Mike's Pipe Yard and Building Supply, covering the insured's interests as property owner and plumbing supply distributer. The policy required that in the event of an "occurrence," the insured must provide notice "as soon as practicable."

Defendant Guzman, plaintiff in the underlying action, allegedly sustained injuries in June 2003 while performing construction work in the insured building. The insured was immediately informed of the incident, but failed to notify plaintiff insurer supposedly because Guzman did not appear to be seriously injured and he indicated he would not be filing a Workers' Compensation claim. Guzman did not return to work until two months later, claiming pain in his shoulder and biceps. Guzman was paid reduced wages during that period. Only after returning to work did Guzman notify the insured that he would be filing a Workers' Compensation claim, at which point the insured orally informed its broker of the incident. The insured claims it never had any direct dealings with plaintiff, and assumed the broker was plaintiff's agent. Plaintiff, however, did not have a principal-agent relationship with the broker.

Guzman commenced the underlying personal injury action in July 2004. In August, 14 months after the occurrence, the insured sent the summons and complaint to its broker, which forwarded it to plaintiff. Thus, the first notification plaintiff received was on August 16, 2004. Plaintiff wrote to the insured on September 15, disclaiming coverage for failure to comply with the policy's requirement to give timely notification.

The insured failed to demonstrate a valid excuse for its delay in notifying plaintiff of the occurrence. "Notice to a broker cannot be treated as notice to the insurer since the broker is deemed to be the agent of the insured and not the carrier" (Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460, 462 [2005]).

In the Matter of Allstate Insurance Company v. Joseph

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant.
Martin, Fallon & MullÉ;, Huntington, N.Y. (Richard C. MullÉ;
and Stephen P. Burke of counsel), for
respondent State Farm Insurance
Company.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to stay arbitration of uninsured motorist claims, the petitioner appeals from an order of the Supreme Court, Kings County (Archer, J.H.O.), dated October 24, 2005, which, after a hearing, denied the petition.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new hearing on the petition and a new determination thereafter.

The petitioner, Allstate Insurance Company (hereinafter Allstate), sought to stay uninsured motorist arbitration demanded by the individual respondents, Claudette Joseph and Reginald Aime, on the ground that the other vehicle involved in a January 8, 2004, accident had viable insurance with the respondent State Farm Mutual Insurance Company (hereinafter State Farm). State Farm, while recognizing as its insureds both the owner of the vehicle, Sophia Prepetit, and the driver, Grahamy Apotordie, disclaimed coverage on the basis of late notice of the occurrence. The Supreme Court, Kings County, referred the matter to a Judicial Hearing Officer for a hearing "on the question of insurance coverage."

At the hearing, State Farm presented one witness to establish its defense of late notice by the owner and the injured parties. In response, Allstate called Prepetit, who testified that she had not provided State Farm with timely notice of the accident because she was unaware that it had occurred, having left the vehicle with a friend on November 23, 2003, solely for the purpose of disposing of the vehicle. Prepetit further testified that she did not know Apotordie and had not given her permission to operate the vehicle.

At the close of evidence, Allstate requested a continuance to allow it to present further evidence and to prepare legal arguments with respect to the issue of permissive use that had been raised for the first time at the hearing. Although the JHO sua sponte deemed the pleadings amended to raise the issue of permissive use, the JHO denied Allstate's request for a continuance and, without addressing the issue of late notice that had been the intended subject of the hearing, denied Allstate's petition on the ground that the State Farm policy did not provide coverage because the vehicle was being used at the time of the accident without the owner's permission.

A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the hearing, even absent a motion by a party, provided there is no significant prejudice or surprise to the party opposing the amendment (see A-1 Check Cashing Serv., Inc. v Goodman, 148 AD2d 482; CPLR 3025[b],[c]; CPLR 4311). Here, the order of reference broadly authorized the JHO to determine the issue of "coverage." The JHO thus had authority to consider the issue of permissive use, which is relevant to the denial of coverage and providently exercised her discretion to do so (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704, 705).

Allstate's request for a continuance to enable it to investigate the owner's story, to attempt to locate relevant material witnesses, and to prepare a legal response to the issue of permissive use that was raised for the first time at the hearing, however, should have been granted. In light of State Farm's identification, in its disclaimer notice, of the driver of the vehicle as its insured, there was no basis upon which Allstate should have anticipated prior to the hearing that the issue of permissive use would be raised. Since the evidence and argument Allstate sought time to develop would likely have been material to the issue to be decided and a brief delay in the conclusion of this nonjury hearing would not likely have caused any prejudice, it was an improvident exercise of discretion to deny Allstate's request (see Cantoni ITC USA v Milano Intl., 300 AD2d 334, 335; DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 242; see also Matter of Metlife Auto & Home v Shoyfer, 19 AD3d 696; Schaefer v Guddemi, 182 AD2d 808, 809).

FLORIO, J.P., MASTRO, SPOLZINO and SKELOS, JJ., concur.

Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

 

APPEAL by the plaintiff from an order of the Supreme Court (Herbert Kramer, J.), dated November 8, 2004, and entered in Kings County, in an action to recover damages for legal malpractice and breach of contract, which granted the defendant's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. Justice Lifson has been substituted for former Justice Cozier (see 22 NYCRR 670.1[c]).


Dinkes & Schwitzer, New York, N.Y. (William Dinkes of counsel),
for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York,
N.Y. (Thomas W. Hyland, Richard E.
Lerner, and Brett Scher of counsel),
respondent pro se.

OPINION & ORDER
FISHER, J.The principal issue presented on this appeal concerns whether a law firm, retained by a primary carrier to defend its insured in a pending action, has any obligation to investigate whether the insured has excess coverage available and, if so, to file a timely notice of excess claim on the insured's behalf.

I

On April 1, 2000, Kazimierz Golebiewski was seriously injured while performing demolition work at the premises of the plaintiff, Shaya B. Pacific, LLC. As a result, Golebiewski and his wife commenced a personal injury action against the plaintiff and others. In July 2000 the plaintiff's primary carrier, Certain Underwriters at Lloyds of London (hereinafter Lloyds), retained the defendant, Wilson, Elser, Moskowitz, Edelman and Dicker, LLP to defend the plaintiff in the personal injury action.

The policy limit of Lloyds' primary policy was $1,000,000. Golebiewski was seeking damages of $52,500,000. Consequently, on January 25, 2001, a representative of Lloyds wrote to the plaintiff, stating in relevant part:

"As you know suit has been filed in this matter. We must advise you that the demand in the suit papers of $52,500,000 is in excess of your policy limits of $1,000,000 per occurrence. As such you may wish to engage counsel of your own choice at your own expense to act on your behalf in regards to any potential excess judgments. We can advise that we are continuing the defense of this matter on your behalf through the Law Offices of Wilson, Elser, Moskowitz, Edelman & Dicker.

 

"Furthermore you may wish to check with your insurance agent to determine if any excess insurance coverage is in force. If so we would urge you to quickly notify any excess insurance carrier of this suit situation."

In February 2003 Golebiewski was awarded summary judgment against the plaintiff on the issue of liability under Labor Law § 240(1). On or about April 24, 2003, before the commencement of the trial on the issue of damages, the defendant law firm, on the plaintiff's behalf, tendered the case to National Union Fire Insurance Company (hereinafter National Union) for further defense and for indemnification with respect to the excess claim. National Union had issued a commercial umbrella policy to Greendel Developers, Ltd. (hereinafter Greendel). Greendel was not a party to Golebiewski's action against the plaintiff, and its relationship to the plaintiff, if any, was not revealed in the record before us.

In any event, by letter dated May 14, 2003, and addressed, inter alia, to both Greendel and the plaintiff, National Union declined the tender and disclaimed coverage on the ground that it had not received timely notice of Golebiewski's action. Additionally, National Union claimed it had no information to confirm that the plaintiff was an insured under the excess policy.

On or about October 22, 2003, Golebiewski obtained a judgment against the plaintiff on his Labor Law claim in the principal sum of $5,694,320, and his wife obtained a judgment against the plaintiff on her derivative claim in the principal sum of $795,000. On March 8, 2004, the plaintiff commenced the instant action against the defendant law firm, asserting causes of action sounding in legal malpractice and breach of contract. In its complaint, the plaintiff claimed that the defendant had been negligent in failing to advise National Union of the underlying action or, alternatively, that its failure to do so constituted a breach of contract.

The defendant law firm thereafter moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), arguing that (1) the plaintiff failed to establish its status as an insured under the National Union policy, and therefore could not establish causation, (2) any negligence on the defendant's part was not a proximate cause of the loss of excess coverage because the firm was retained more than three months after the plaintiff first became aware of the need to notify any excess carrier, and approximately two months after the plaintiff became aware of the Golebiewski action, and (3) in any event, as the defense counsel provided by the plaintiff's primary carrier, the defendant law firm had no duty to advise the plaintiff concerning coverage issues. The Supreme Court granted the motion and dismissed the complaint. This appeal followed.

II

To begin with, it is important to emphasize that this appeal comes to us from an order granting a pre-discovery motion to dismiss, not an order granting summary judgment. The standards governing such pre-discovery motions are familiar. A motion to dismiss made pursuant to CPLR 3211(a)(1) will fail unless the documentary evidence that forms the basis of the defense resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see McCue v County of Westchester, 18 AD3d 830, 831; see also Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88; Trade Source v Westchester Wood Works, 290 AD2d 437, 438; Teitler v Pollack & Sons, 288 AD2d 302). Moreover, a motion to dismiss made pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law (see e.g. AG Capital Funding Partners, L.P. v State St. Bank and Trust Co., 5 NY3d 582, 590-591; Leon v Martinez, supra at 87-88; Hayes v Wilson, 25 AD3d 586; Marchionni v Drexler, 22 AD3d 814; Rinaldi v Casale, 13 AD3d 603, 604-605). Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).

In light of these standards, and considering the circumstances of the case and the arguments advanced by the parties, the defendant law firm would be entitled to dismissal pursuant to CPLR 3211(a)(1) if it could establish either that the letter dated January 25, 2001, conclusively proved that the scope of its representation never encompassed any responsibility with respect to possible excess coverage or, alternatively, that the disclaimer letter of May 14, 2003, conclusively established that the plaintiff was not an insured under the excess policy. To succeed on its motion to dismiss pursuant to CPLR 3211(a)(7), the defendant would have to establish either that, as a matter of law, it owed the plaintiff no duty to identify and notify potential excess carriers or, alternatively, that any negligence on the defendant's part in failing to do so, as a matter of law, did not proximately cause the loss of excess coverage.

III

The defendant failed to show that the January 25, 2001, letter from Lloyds to the plaintiff conclusively established that the scope of the firm's representation was limited. The letter stated only that the plaintiff "may wish to engage" separate counsel to act on its behalf with respect to any "potential excess judgments" beyond the $1,000,000 primary policy limits, and invited the plaintiff to investigate any possible excess coverage. The letter also confirmed that Lloyds was "continuing the defense of this matter on [the plaintiff's] behalf through the Law Offices of [Wilson Elser]."^[FN1] Thus, the letter, standing alone, failed to resolve conclusively all material issues of fact regarding the scope of the defendant's representation.

The dissent would place on the plaintiff the initial burden of pleading sufficient evidentiary facts to establish that the scope of the defendant's representation specifically included the duty to investigate excess coverage. Legal malpractice actions, however, are not subject to special pleading requirements (compare CPLR 3014, with CPLR 3016). Thus, a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the defendant's representation. Rather, a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice. The defendant here has failed to do so.

Likewise without merit is the defendant's contention that any negligence on its part could not have been a proximate cause of the plaintiff's loss of excess coverage because the disclaimer letter of May 14, 2003, conclusively established that the plaintiff was not an insured under the National Union policy. Contrary to the view expressed by our dissenting colleague, we find that the disclaimer letter itself is, at best, inconclusive, stating only that the plaintiff "[is] not listed as [a] named insured[] on the Policy" and that National Union had "no information to confirm [that the plaintiff is an insured] as defined in Section IV(E) [of the Policy]." Having failed to tender a copy of the underlying policy, the defendant cannot conclusively establish that such policy afforded the plaintiff no coverage. Thus, that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) should have been denied.

Nor did the defendant establish that the plaintiff's claim for excess coverage was already stale by July 2000, when the defendant law firm was first retained. Although the plaintiff arguably had knowledge of Golebiewski's accident in April 2000, it is unclear when the plaintiff first learned that his claim might exceed the limits of the primary policy. Moreover, inasmuch as the plaintiff was not a named insured under the National Union policy, it is unclear when the plaintiff first knew, or first should have known, that such policy might afford excess coverage for the accident. These questions raise issues of fact that, at minimum, warrant the development of a full record.^[FN2]

IV

We turn, then, to the central question presented on this appeal: Whether a law firm retained by a carrier has any duty to ascertain whether the insured it was hired to represent has available excess coverage, or to file a timely notice of excess claim on the insured's behalf. The issue is best addressed by examining two questions. The first is whether, under ordinary circumstances, an attorney retained directly by a defendant in a personal injury action has any obligation to investigate the availability of insurance coverage for his or her client and to see that timely notices of claim are served; the second is whether, if such an obligation exists, it also binds an attorney who is retained to defend a personal injury action, not by the defendant directly, but by the defendant's carrier.

On the first question, the defendant law firm contends that there is no authority in this State for the proposition that a legal malpractice action may be maintained against an attorney for failing to investigate an insurance coverage issue or for failing to notify a client's carrier of a potential claim. We disagree (see Fireman's Fund Ins. Co. v Farrell, 289 AD2d 286; cf. Perks v Lauto & Garabedian, 306 AD2d 261).

Moreover, Darby & Darby v VSI Intl. (95 NY2d 308), relied on by the defendant, does not support its position. In that case, a corporate client asserted a claim for legal malpractice based on its law firm's failure to advise it of possible coverage under a CGL policy for expenses relating to a patent infringement action. In upholding the dismissal of the legal malpractice claim, the Court of Appeals noted that the corporate client's claim "is based on a then novel theory that patent insurance coverage was available under an advertising liability' clause in general liability policies" (id. at 312). After noting that "the theory of such coverage remained largely undeveloped at the time of [the law firm's] representation, with only a handful of courts, particularly in California, finding a duty to defend patent infringement claims," the Court held that the law firm "should not be held liable for failing to advise [the clients] about a novel and questionable theory pertaining to their insurance coverage" (id. at 314). The Court did not hold, however, that an attorney may never be held liable for failing to discover available insurance coverage. Indeed, by stressing the "novel and questionable" nature of the theory of coverage involved in the case (id. at 314), the Court may well have been implying that, had the availability of coverage been clear at the time of the representation, a different result would have been reached.

In any event, it seems self-evident that the question whether, in the ordinary case, an attorney could be found negligent for failing to investigate insurance coverage would turn primarily on the scope of the agreed representation - a question of fact - and on whether, in light of all relevant circumstances, the attorney "failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession" (Arnav Indus. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303-304; see Darby & Darby v VSI Intl., supra at 313; Levy v Greenberg, 19 AD3d 462). We cannot say, as a matter of law, that a legal malpractice action may never lie based upon a law firm's failure to investigate its client's insurance coverage or to notify its client's carrier of a potential claim.^[FN3]

The defendant nevertheless contends that, whatever the duty of counsel retained directly by a defendant, the duty of counsel appointed and paid by an insurance carrier is more limited. Indeed, the defendant argues that insurance defense counsel never has any obligation to investigate coverage issues, as that "would violate every principle of the tri-partite relationship that exists between an insurer, an insured, and appointed defense counsel."

The subject of the so-called tri-partite relationship of insured, insurer, and insurance defense counsel has been extensively examined (see generally Silver and Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke LJ 255 [1995]; see also Pryor and Silver, Defense Lawyers' Professional Responsibilities: Part II - Contested Coverage Cases, 15 Geo J Legal Ethics 29 [2001]; Baker, Liability Insurance Conflicts and Defense Lawyers: from Triangles to Tetrahedrons, 4 Conn Ins LJ 101 [1997]; Jerry, Consent, Contract, and the Responsibilities of Insurance Defense Counsel, 4 Conn Ins LJ 153 [1997]). In some jurisdictions, an attorney retained by a carrier has been held to have a lawyer-client relationship only with the insured (see e.g. Barefield v DPIC Companies, 215 W Va 544, 558, 600 SE2d 256, 270; In re Rules of Professional Conduct, 299 Mont 321, 333, 2 P3d 806, 814; Atlanta Intl. Ins. Co. v Bell, 438 Mich 512, 475 NW2d 294; First Am. Carriers, Inc. v Kroger Co., 302 Ark 86, 90, 787 SW2d 669, 671; Cont. Cas. Co. v Pullman, Comley, Bradley and Reeves, 929 F2d 103, 108 [2d Cir]; see also Jackson v Trapier, 42 Misc 2d 139). In others, the attorney-client relationship may, under certain conditions - including the absence of a conflict of interest - extend to the carrier as well (see e.g. General Sec. Ins. Co. v Jordan, Coyne and Savits, LLP, 357 F Supp 2d 951 [ED Va]; Spratley v State Farm Mut. Auto. Ins. Co., 78 P3d 603 [Utah]; Gulf Ins. Co. v Berger, Kahn, Shafton, Moss, Figler, Simon and Gladstone, 79 Cal App 4th 114, 125-127, 93 Cal Rptr 2d 534, 542-543; Pine Is. Farmers Coop v Erstad & Riemer, P.A., 649 NW2d 444 [Minn]; cf. Paradigm Ins. Co. v Langerman Law Offices, P.A., 200 Ariz 146, 24 P3d 593).

The defendant argues, in effect, that it had an attorney-client relationship with Lloyds as well as with the plaintiff, and that, with respect to insurance coverage, the interests of its two clients were in conflict. Assuming without deciding that in New York a law firm retained by a carrier to represent its insured may have an attorney-client relationship with both, and assuming further that such was the case here, we see no conflict of interest in the circumstances at bar.

Both the plaintiff and Lloyds had a shared interest in defeating the Golebiewskis' claim and in securing a defense verdict. Beyond that, Lloyds' interest was in keeping the verdict as low as possible and below its policy limit. If the verdict could not be kept within its policy limit, Lloyds had no interest in the amount by which that limit was exceeded. The plaintiff's interest, on the other hand, was to see that the verdict remained within its overall coverage. Thus, while the plaintiff had an important interest in the existence, availability, and amount of excess coverage, Lloyds did not.

We recognize that a conflict may have arisen here had the issue concerned the scope or nature of the coverage afforded to the plaintiff by Lloyds' primary policy. But Lloyds had no interest in the existence or extent of excess coverage available to the plaintiff and therefore the defendant would not have breached any duty owed to Lloyds by advising the plaintiff on issues of excess coverage. Thus, we reject the defendant's contention that to have given such advice would have violated the tri-partite relationship.

Consequently, just as we are unprepared to say, as a matter of law, that a failure to investigate the existence of excess insurance coverage may never give rise to a legal malpractice action against an attorney retained directly by a defendant in a personal injury action, we take the same view with respect to an attorney who is retained, not by the defendant directly, but by its carrier. Accordingly, the defendant's pre-discovery motion to dismiss the cause of action sounding in legal malpractice should have been denied.

The Supreme Court properly dismissed the cause of action to recover damages for breach of contract, however, as it was merely duplicative of the legal malpractice claim (see Shivers v Siegel, 11 AD3d 447; Ferdinand v Crecca & Blair, 5 AD3d 538, 539; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562-563; Senise v Mackasek, 227 AD2d 184, 185).

SCHMIDT, J.P., and RIVERA, J., concur.
LIFSON, J. (dissenting):

The issue presented is fairly narrow: did the complaint set forth sufficient facts to sustain a viable cause of action to recover damages for legal malpractice or, alternatively, whether the cause of action should have been summarily dismissed based on the documentary proof submitted. Because I believe that the majority would impose a duty on lawyers that has heretofore not been recognized by any court in this State, I respectfully dissent. Moreover, I note that the plaintiff's proof was insufficient to defeat the defendant's motion.

The complaint herein asserts that Kazimierz Golebiewski, a plaintiff in an action to recover damages for personal injuries, was injured in April 2000 in a construction accident at premises owned by the plaintiff. The complaint in pertinent part merely alleged that the defendant law firm committed malpractice by its failure to timely and properly notify the plaintiff's excess insurance carrier of the accident and lawsuit. Thus, to prevail, the plaintiff must allege and establish that the defendant law firm had such a duty (assuming such a duty existed), and that the defendant's failure to perform such duty was the proximate cause of the plaintiff's damages. For the reasons stated below, I believe that the complaint is deficient. Moreover, even if the complaint was not fatally flawed, the plaintiff failed to demonstrate that a triable issue of fact exists as to the potential malpractice of the defendant law firm. 

The evidence submitted on the defendant's motion established the following: Upon being notified of the claim, the plaintiff forwarded the complaint in the underlying action to its insurance broker. In turn, the plaintiff's insurance broker notified the plaintiff's primary insurance carrier and allegedly notified the plaintiff's excess insurance carrier ^[FN4]. The proof also demonstrated that sometime in July 2000 the defendant law firm was assigned as counsel to defend the underlying action. Thereafter, the plaintiff's primary carrier, Certain Underwriters at Lloyds' of London (hereinafter Lloyd's), by letter dated January 25, 2001, advised the plaintiff that Lloyds would defend the claim on its behalf and that it had provided the services of the defendant law firm for that purpose ^[FN5]. The letter also noted that the amount sought in the underlying personal injury action exceeded the limits of its coverage under the primary policy of insurance. The letter went on to state, in pertinent part:

Furthermore, you may wish to check with your insurance agent to determine if any excess insurance coverage is in force. If so we would urge you to quickly notify any excess insurance carrier of this suit situation . . . (emphasis added)

The complaint in the instant legal malpractice action alleges that the defendant law firm tendered the coverage under the primary policy after a motion for summary judgment on the issue of liability in the underlying action was granted. Before the damages portion of the trial in the underlying action, the defendant law firm notified the excess carrier and requested that it defend and indemnify the plaintiff at the damages portion of the trial in the underlying action. The excess carrier denied that it had ever received notice of the underlying claim from the insurance broker in January 2001. In denying coverage, the excess carrier took the position that the plaintiff was not a named insured and, even if that were not the case, the notice tendered to it was untimely. Ultimately a judgment in excess of the primary carrier's policy limits was issued against the plaintiff. The plaintiff asserts that it did have excess insurance coverage available to it and submitted proof of a temporary binder to that effect, and that the defendant law firm took no steps to investigate the existence of such coverage or to properly notify the excess carrier of the claim. The within action, inter alia, to recover damages for legal malpractice ensued.

We recently observed in Lichtenstein v Barenbaum (23 AD3d 440), that "[i]n order to establish a cause of action to recover damages for legal malpractice, a plaintiff must prove that (1) the attorney failed to exercise the care, skill, and diligence commonly possessed by a member of the legal profession, (2) the attorney's conduct was a proximate cause of the loss sustained, (3) the plaintiff suffered actual damages as a direct result of the attorney's actions or inaction, and (4) but for the attorney's negligence, the plaintiff would have prevailed in the underlying action (see Porello v Longworth, 21 AD3d 541; Levy v Greenberg, 19 AD3d 462; Pistilli v Gandin, 10 AD3d 353)."

An examination of the subject complaint reveals that it fails to allege sufficient facts to establish each of the requisite elements of a cause of action to recover damages for legal malpractice. Because the complaint does not assert facts establishing the duty owed, it fails to allege that the defendant law firm did not exercise the care and skill one could reasonably expect of the legal community (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082). The complaint also failed to adequately allege facts showing that the attorney's alleged breach of that duty was the proximate cause of the loss sustained (see Ferdinand v Crecca & Blair, 5 AD3d 538). The complaint, even given the greatest of deference, merely consists of conclusory allegations of malpractice.

More significantly, the defendant law firm offered documentary proof that the plaintiff's claim was rejected primarily on the expressed grounds that the plaintiff was not a covered party to the excess insurance policy in question. The defendant therefore met its initial burden by negating the possibility that any inaction on its part led to the disclaimer. In response, the plaintiff merely submitted an attorney's affidavit accompanied by an exhibit consisting of an alleged temporary binder of its insurance broker, issued more than six weeks before the accident in question. No copy of the excess insurance policy upon which coverage is claimed was presented and there is no proof by a person possessed of personal knowledge that such a valid policy of excess insurance (covering the insured for the incident in question) ever existed by the issuance of a policy of insurance or an extension of a valid temporary binder of insurance pertaining to the plaintiff as an insured party. Thus, the plaintiff's proof is simply insufficient and the cause of action to recover damages for legal malpractice was properly dismissed.

The facts as established by the various submissions also clearly indicated that the defendant law firm demonstrated that there was no breach of any duty owed to the plaintiff. Assuming that such a policy of excess insurance existed, the record shows that such policy would include language which would obligate its named insured to notify the excess carrier of the occurrence as soon as practicable and to notify it immediately of any lawsuit. Although no absolute time period has ever been established for such obligations, it has been held that the failure to provide such notice within a reasonable time is fatal to a claim for coverage (see Matter of American Cas. Ins. Co. v Silverman, 271 AD2d 528). The burden is upon the insured to demonstrate that timely notice was given to the carrier (see Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742). In some instances the failure to provide such notice within a 60-day time period has proved fatal to the claim (see Heydt Contr. v American Home Assur. Co., 146 AD2d 497; Power Auth. of State of N.Y. v Westinghouse Elec. Corp., 117 AD2d 336).

Assuming that a valid policy of excess insurance existed and that the plaintiff was an insured under that policy, the plaintiff has failed to allege or establish that, upon being designated as the plaintiff's counsel by the primary carrier, had the defendant law firm given immediate notice to the excess carrier, that such notice would have been timely. Therefore, the defendant established that the plaintiff failed to allege and establish the "but for" standard that is a requisite of any malpractice action (Levy v Greenberg, supra; see Porello v Longworth, supra; Dimond v Kazmierczuk & McGrath, supra; Pistilli v Gandin, supra). Therefore, no action to recover damages for legal malpractice can be sustained (see Perks v Lauto & Garebedian, 306 AD2d 261) (where an action to recover damages for legal malpractice was dismissed where a successor attorney to the defendant attorney also had an opportunity to investigate possible additional insurance coverage for a plaintiff).

The foregoing begs the central issue here, to wit, that there is no case law in this State that imposes upon the attorney assigned by a primary carrier to verify that excess coverage indeed does not exist. At the outset, I accept that there may be situations where an attorney in the representation of a client may have a duty to investigate the existence of additional insurance coverage. For example, a plaintiff's attorney instituting an action to recover damages for injuries sustained as a result of a defendant's negligent operation of an automobile is expected to explore all possible avenues of insurance coverage (see Perks v Lauto & Garebedian, supra). Similarly, in a personal injury action where recovery for lost wages is sought, a defendant's attorney may have a duty to explore the extent, if any, of potential diminishment of the defendant's exposure through the plaintiff's resort to relief pursuant to the provisions of the Workers' Compensation Law (see Fireman's Fund Ins. Co. v Farrell, 289 AD2d 286). However, in both such cases the circumstances were such that the attorney was expected to have a superior capability to ascertain the existence of alternative coverage to that of the client.

On the other hand, where the circumstances are such that the client has superior or equal knowledge of potential sources of additional coverage, unless requested to investigate by the client, the attorney has no duty to explore hypothetical theories of additional insurance coverage (see Darby & Darby P.C. v VSI Intl., 95 NY2d 308). In a somewhat analogous case (an action brought against the primary carrier alleging breach of a fiduciary duty to notify the excess carrier) involving circumstances indicating that the insured had the same knowledge as its primary carrier of potential excess coverage, the Appellate Division, Third Department, stated, in pertinent part: "[h]aving had essentially the same information as defendant, plaintiff should not be permitted to shift to defendant the responsibility for failing to notify the excess carrier, an obligation imposed on plaintiff alone by its contract with the excess carrier. At most, plaintiff's evidence establishes defendant's erroneous belief that plaintiff's liability would not exceed the primary policy limits" (Monarch Cortland v Columbia Cas. Co., 224 AD2d 135, 137-138).

The facts here are far more compelling. The record indicates that the only party with knowledge of the incident and the potential need for excess coverage was the plaintiff. The record also indicates that the plaintiff had an obligation to notify the excess carrier of the happening of the incident (i.e., an obligation that preceded any designation of counsel on the primary policy of insurance after the commencement of the underlying action). The insured's contractual responsibility to notify its alleged excess insurance carrier cannot be avoided or diminished through the subterfuge of attempting to foist such obligation on an unsuspecting law firm selected by the primary carrier particularly where, as here, the law firm may have been assigned the case after the time to notify the excess carrier had expired. The failure of the complaint to allege such circumstances which, if proved, would establish that the sole cause of the plaintiff's injury was the negligence of the defendant law firm, as previously discussed, is fatal. I therefore conclude that whether viewed as a motion pursuant to CPLR 3211(a)(1) or (7), the subject complaint was properly dismissed. Accordingly, I would affirm the order, and I therefore respectfully dissent.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the first cause of action sounding in legal malpractice and substituting a provision therefor denying that branch of the motion; as so modified, the order is affirmed, with costs.

ENTER:

James Edward Pelzer

Clerk of the Court

Footnotes

Footnote 1:Moreover, we note that the interpretation of the letter now pressed by the defendant is inconsistent with the defendant's act, in April 2003, of tendering the plaintiff's notice of claim to National Union.

Footnote 2:The dissent again would place on the plaintiff, at the pleading stage, the burden of establishing, through specific evidentiary facts, that notice would have been timely if given in July 2000, when the defendant was first retained. The CPLR, however, imposes no such specific pleading requirement. It is sufficient for the complaint to allege that the defendant's failure to timely notify the excess carrier resulted in the loss of coverage. Causation - or lack thereof - may properly be challenged by way of a motion for summary judgment once a factual record has been developed.

Footnote 3:The dissent recognizes that "there may be situations where an attorney in the representation of a client may have a duty to investigate the existence of additional insurance coverage" (Dissent, at 12). Nevertheless, as stated earlier, the dissent would hold, as a matter of law, that no viable malpractice claim can be asserted unless the plaintiff specifically pleads evidentiary facts sufficient to establish the existence of such duty under the particular circumstances of the case. Such a holding would, in effect, work a judicial amendment of CPLR 3016 by adding legal malpractice to the list of actions subject to specific pleading requirements.

Footnote 4:The latter contention is not alleged in the underlying complaint. However, the defendant law firm attached copies of pleadings in an ancillary action wherein the plaintiff made the unequivocal statement of providing such notice to its broker.

Footnote 5:No explanation is offered as to the large gap of time from the appointment of the defendant law firm to the defendant's issuance of the letter advising the plaintiff of its representation.

 

Stepcic v. ADC Construction

Before: Mercure, J.P., Crew III, Peters, Spain and Carpinello, JJ.


Polsky, Shouldice & Rosen, P.C., Rockville Centre
(Timothy J. Rogers of counsel), for appellant.
Gregory A. Allen, State Insurance Fund, Melville
(James S. Fiedler of counsel), for ADC Construction,
respondent.

MEMORANDUM AND ORDER


Spain, J.

Appeal from a decision of the Workers' Compensation Board, filed August 11, 2005, which ruled that the death of claimant's decedent did not occur in the course of his employment and denied claimant's application for workers' compensation death benefits.

Claimant's decedent was employed as a laborer to follow behind an asphalt-ripping machine, pick up pieces of asphalt and place them on the side of the road for subsequent removal. During work, decedent noticed a dumpster containing construction debris from an unrelated work site. Decedent removed what initially appeared to be a piece of steel but was actually a shotgun from a box on top of the dumpster and showed it to a coworker. The shotgun then discharged, fatally wounding decedent. After a hearing, a Workers' Compensation Law Judge determined that decedent had suffered a work-related injury resulting in death. The Workers' Compensation Board reversed, finding that decedent's death did not occur in the course of employment. Claimant appeals. 

We affirm. To be compensable, an injury must arise out of and in the course of employment (see Workers' Compensation Law § 10 [1]). "The determination of whether an activity is within the course of employment or is purely personal is a factual question for the Board's resolution and depends upon whether the activity is reasonable and sufficiently work related" (Matter of D'Accordo v Spare Wheels & Car Shoppe of Sayville, 257 AD2d 966, 967 [1999] [citation omitted]; see Matter of Primiano v Pep Boys Serv., 277 AD2d 631, 631-632 [2000]). At the hearing, testimony established that the dumpster and its contents were not used in the course of decedent's employment in any way. Testimony also indicated that workers were not in the habit of looking into the dumpster and that no work-related reason existed to do so. We conclude that the record contains substantial evidence to support the Board's determination that decedent's actions in handling the discarded firearm were unreasonable and completely unrelated to decedent's employment (see Matter of Gibbs v Orange County Sheriff's Dept., 149 AD2d 845 [1989]; Matter of Kotlarich v Incorporated Vil. of Greenwood Lake, 101 AD2d 673 [1984], lv denied 64 NY2d 603 [1985]; Matter of Tyler v Gilbert, 29 AD2d 591 [1967]; cf. Matter of Lubrano v Malinet, 65 NY2d 616 [1985]).

Mercure, J.P., Crew III, Peters and Carpinello, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Gotham Construction Company, LLC v. United National Insurance Company

Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for appellants-respondents.
Kelly, Rode & Kelly, LLP, Mineola (John W. Hoefling of
counsel), for respondent-appellant.
Fiedelman & McGaw, Jericho (Dawn C. DeSimone of
counsel), for Professional Risk Managers, Inc., appellant.
Thomas F. Farley, Armonk, for D.J.M. Rebar, Inc., respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered June 5, 2006, which denied plaintiffs' motion and the third parties' cross motions for summary judgment, unanimously affirmed, without costs.

Plaintiffs, the construction manager and owner of a new residential building under construction, sought a declaration of entitlement to a defense and indemnification from their insurer, defendant United National, in an underlying personal injury action brought by an employee of defendant subcontractor D.J.M. Rebar. The subcontract required Rebar to obtain general liability coverage for plaintiffs as additional insureds. Rebar's broker, the third-party defendant herein, confirmed that Rebar's policy from United National was extended to cover plaintiffs. Notwithstanding the broker's certificate to that effect, the insurer denied coverage, citing the Residential Projects Exclusion in the policy. In response to plaintiffs' motion for summary judgment, the broker cross-moved for summary dismissal of the third-party action, citing the same exclusionary clause. Rebar made its own cross motion for summary judgment on its cross claim against its codefendant insurer. The court correctly ruled that none of the parties was entitled to summary judgment.

United National's 50-day delay in issuing its disclaimer of coverage to plaintiffs for the underlying accident was unreasonable as a matter of law under Insurance Law § 3420(d), because the basis for the disclaimer was apparent from the documents forwarded to it with the tender, and contrary to its claim, United National had no need to conduct an investigation before determining whether to disclaim (see e.g. West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278, 279 [2002], lv denied 98 NY2d 605 [2002]). However, the insurer did raise an issue of fact as to whether the certificate of insurance naming plaintiffs as additional insureds under Rebar's general liability policy was on file with the company, as required. Contrary to its contention, United National did not succeed in establishing, as a matter of law, that the certificate was not on file and that it thus never actually issued an effective policy covering plaintiffs as additional insureds. The issue of Rebar's tender to United National was not addressed on the motions and the record is devoid of any evidence concerning that issue. Thus, neither Rebar nor United National demonstrated entitlement to summary judgment on the timeliness of the insurer's disclaimer to Rebar.

Summary judgment was properly denied to the third-party broker because issues of fact exist as to whether it was authorized to issue the certificate of insurance naming plaintiffs as additional insureds, and whether the broker ever submitted that certificate to United National or its issuing agent.

We have considered and rejected defendant United National's remaining contention.

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

Lutheran Social Services of Metropolitan New York, Inc., v. Guide One Insurance

 

Judgment, Supreme Court, New York County (Karen S. Smith, J.), entered October 7, 2005, in favor of plaintiff in the amount of $99,118.99, which brings up for review an order of the same court and Justice, entered September 28, 2005, which granted plaintiff's motion for summary judgment seeking, inter alia, $79,280.06 with interest for litigation expenses it incurred in its defense of an underlying action and denied defendant's cross motion to dismiss the complaint, unanimously reversed, on the law, without costs, the judgment vacated, plaintiff's motion for summary judgment denied, and defendant's cross motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. Appeal from the aforementioned order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff foster care agency commenced this declaratory judgment action to recover from defendant insurer litigation expenses incurred in defense of an underlying lawsuit brought by an adopting couple who alleged that plaintiff had failed to notify them that the adopted children had tested positive for HIV. However, there is no record evidence that the insurance coverage on which plaintiff relies was in effect when the adoptive parents' causes of action accrued, and therefore defendant's cross motion for summary judgment must be granted. While it is true that defendant's disclaimer of coverage did not state that plaintiff was not actually insured when the causes accrued, a disclaimer under Insurance Law § 3420(d) only need include policy exclusions; if a claim falls outside the scope of the policy's coverage, disclaimer is unnecessary (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]). Contrary to the position taken by plaintiff, "the failure to disclaim coverage does not create coverage which the policy was not written to provide" (Zappone v Home Ins. Co., 55 NY2d 131, 134 [1982]). We have considered and rejected plaintiff's remaining arguments.

Bolis v. Fitzpatrick

Appeal from a judgment of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered June 3, 2005 in a personal injury action. The judgment was entered, upon a jury verdict, in favor of plaintiff in the amount of $37,833.89.


SUGARMAN LAW FIRM, LLP, SYRACUSE (KELLY J. PHILIPS OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAW OFFICE OF CRAIG Z. SMALL, BUFFALO (CRAIG Z. SMALL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the amount of the award of damages for past medical expenses to $15,903.42 and as modified the judgment is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for personal injuries she sustained in a motor vehicle accident. The parties signed a stipulation ("Stipulation") agreeing to resolve the action by summary jury trial. According to the terms of the Stipulation, the parties agreed that their rights to move to set aside the verdict, or to appeal, would be limited to instances where the rights of the party were prejudiced by, inter alia, misconduct in procuring the award or an error of law that occurred during the course of the trial. After the jury awarded plaintiff the stipulated amount of $19,124.61 for past medical expenses, $10,000 for past pain and suffering, $5,000 for future pain and suffering, and nothing for lost earnings, both plaintiff and defendants moved to set aside the verdict in part.

Plaintiff moved to set aside the verdict awarding damages for past and future pain and suffering and to increase those awards to $30,000 and $50,000, respectively, on the grounds that those awards were "unjustified," "inadequate," "unreasonable, arbitrary and against the weight of the evidence." Alternatively, plaintiff sought a new trial on those elements of damages. Defendants opposed the motion, contending that the Stipulation did not authorize the motion on the grounds relied upon by plaintiff. Defendants then moved to set aside the verdict awarding damages for past medical expenses on the ground that those expenses did not exceed basic economic loss (see Insurance Law § 5102 [a]; § 5104 [a]). Alternatively, defendants sought to reduce the amount of the award of damages for past medical expenses by the amount plaintiff received from collateral sources, conceded by plaintiff to be $3,221.19.  

Based on its conclusion that the parties had waived enforcement of the Stipulation by their respective motions and by "circumstance[s]," Supreme Court granted plaintiff's motion, increasing the awards for past pain and suffering and future pain and suffering to $30,000 and $50,000, respectively. The court also granted that part of defendants' motion seeking to reduce the award for past medical expenses by the amount plaintiff had received from a collateral source. The judgment, however, was entered in the amount awarded by the jury. Defendants appeal from the order (appeal No. 1) and judgment (appeal No. 2).
Contrary to plaintiff's contention, the Stipulation does not bar defendants' appeals inasmuch as the grounds for the appeals fall within an exception set forth in the Stipulation: to wit, "an error of law that occurred during the course of the trial." With respect to the merits of defendants' appeals, we first conclude that the court erred in granting plaintiff's motion. The court erred in concluding that defendants had, by their motion to set aside the verdict, waived their right to enforce the Stipulation. " [W]aiver is the voluntary abandonment or relinquishment of a known right, which, except for such waiver, the party would have enjoyed.' Waiver may be accomplished by express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage' " (Dice v Inwood Hills Condominium, 237 AD2d 403, 404 [internal citation omitted]; see Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469; Bono v Cucinella, 298 AD2d 483, 484). Contrary to the conclusion of the court, defendants' motion did not indicate an intent to waive enforcement of the Stipulation but, rather, was made in accordance with the terms of the Stipulation. Plaintiff's motion, however, was barred by the terms of the Stipulation, and the court therefore erred in granting it. We therefore modify the order accordingly.

Second, we conclude that the court properly denied that part of defendants' motion seeking to set aside the entire award for past medical expenses. Under the circumstances of this case, we construe defendants' stipulation to the amount of medical expenses and failure to object to the submission of that item of damages to the jury as a waiver of the contention that medical expenses constituting basic economic loss could not be recovered. Third, we conclude that the court properly granted that part of defendants' motion seeking a reduction in the amount of the award of damages for past medical expenses to take into account the amount plaintiff received from  collateral sources. We therefore modify the judgment accordingly.

Matter of Nationwide Mutual Insurnace Company v. Michaels

 

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered March 30, 2006. The order, among other things, denied respondent's motion to disqualify the arbitrator and to appoint a neutral arbitrator.


GROSSMAN & CIVILETTO, NIAGARA FALLS (ERIC B. GROSSMAN OF COUNSEL), FOR RESPONDENT-APPELLANT.
LAW OFFICE OF EPSTEIN & HARTFORD, CHEEKTOWAGA (JENNIFER V. SCHIFFMACHER OF COUNSEL), FOR PETITIONER-RESPONDENT.


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

Memorandum: Petitioner, Nationwide Mutual Insurance Company (Nationwide), commenced this proceeding seeking a permanent or temporary stay of arbitration arising from a demand for arbitration of supplemental uninsured motorist benefits. Supreme Court (Vincent E. Doyle, J.) denied the petition for a permanent stay but granted a temporary stay for 60 days to complete discovery. Thereafter, respondent moved for an order disqualifying the arbitrator and appointing a neutral arbitrator. Supreme Court (Richard C. Kloch, Sr., A.J.) properly denied the motion. A court has the inherent power to disqualify an arbitrator before an award has been rendered where there is a real possibility that injustice will result (see Matter of Astoria Med. Group [Health Ins. Plan of Greater N.Y.], 11 NY2d 128, 132; Matter of County of Niagara v Bania, 6 AD3d 1223, 1224; Rabinowitz v Olewski, 100 AD2d 539, 540). "The proper standard of review for the disqualification of arbitrators is whether the arbitration process is free of the appearance of bias" (Rabinowitz, 100 AD2d at 540). Here, there is no evidentiary proof of any appearance of bias on the part of the assigned arbitrator (see Matter of Kornit [Plainview-Old Bethpage Cent. School Dist.], 49 NY2d 842, 843). There is no allegation that there was a relationship between the arbitrator and Nationwide that could create a conflict of interest (see County of Niagara, 6 AD3d at 1225). Respondent alleges only that certain rulings of the arbitrator establish partiality on the part of the arbitrator in favor of insurers, but those allegations are insufficient to establish actual bias or the appearance of bias (see id.). We have considered respondent's remaining contentions and conclude that they are without merit.
Entered: December 22, 2006

Matter of New York Central Mutual Fire Insurance Company v. McCleary

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered January 24, 2006 in a proceeding pursuant to CPLR article 75. The order granted the petition seeking a permanent stay of arbitration.


LAW OFFICE OF RICHARD S. BINKO, CHEEKTOWAGA, FOR RESPONDENT-APPELLANT.
BROWN & KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR PETITIONER-RESPONDENT.


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

Memorandum: Supreme Court properly granted the petition seeking a permanent stay of arbitration. Respondent was injured when a boat slipped from a trailer on a boat launch adjacent to the boat launch where she was standing. Respondent observed the boat approaching and pushed it away from her, but she fell to the ground and injured her ankle. Although the trailer was attached to a vehicle, respondent left the scene without obtaining information concerning the vehicle. Respondent served a demand for arbitration of uninsured motorist benefits from petitioner, her insurer, whereupon petitioner commenced this proceeding.

The policy at issue defines an uninsured motor vehicle as one "for which . . . [n]either owner nor driver can be identified (including a hit-and-run vehicle)" and, in accordance with Insurance Law § 5217, the policy provides coverage for bodily injury caused by physical contact with an unidentified vehicle. " [P]hysical contact' occurs within the meaning of the statute[] when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle" (Matter of Allstate Ins. Co. v Killakey, 78 NY2d 325, 329). Here, it cannot be said that the boat was an integral part of the vehicle (see Matter of Insurance Co. of N. Am. [Carrozo], 203 AD2d 210; cf. Allstate Ins. Co., 78 NY2d at 329-330).

 

Village Import Auto Sales & Service v. Motors Insurance Corp. et al.

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered December 22, 2005 in a breach of contract action. The order granted defendants' motion for summary judgment dismissing the complaint.


LAW OFFICE OF ROY A. MURA, BUFFALO (ROY A. MURA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (DANIEL W. GERBER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


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

Memorandum: Plaintiff commenced this action for, inter alia, breach of contract based on defendants' alleged wrongful denial of insurance coverage with respect to seven of plaintiff's vehicles seized by the federal government. According to plaintiff, the seller of the vehicles had warranted to plaintiff that they met all domestic regulatory requirements, but a federal investigation resulted in a determination that none of the vehicles was in compliance with the regulations. Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint on the ground that the loss of the vehicles was not covered by the "False Pretense Coverage" of the insurance policy. That provision applies to, inter alia, "loss of, or to, a covered auto caused by . . . [the acquisition of] an auto from a seller who did not have legal title, including an auto that is stolen, or which has a title that is counterfeit, forged, altered or is otherwise invalid." In support of their motion, defendants failed to submit evidence establishing that the seller had legal title to the vehicles at issue or that title to the vehicles was not counterfeit, forged, altered or otherwise invalid. We thus conclude that defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Indeed, defendants submitted as an exhibit to their attorney's affidavit the affidavit of a federal agent in support of the seizure warrant indicating that the vehicles were fraudulently imported into this country without valid certifications and that the vehicle identification numbers had been altered.

Agha v.Alamo Rent A Car

John P. Bostany, New York, N.Y., for appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New
York, N.Y. (Joel M. Simon of
counsel), for respondents Alamo Rent A Car
and Karim Mounir.
Hawkins Feretic & Daly, LLC, New York, N.Y. (James J.
Feretic of counsel), for respondents Jaber
Jubran and Miad M. Jubran.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated April 5, 2005, as denied his motion for summary judgment on the complaint insofar as asserted against the defendants Miad M. Jubran and Karim Mounir and granted the cross motion of the defendants Alamo Rent A Car and Karim Mounir, and the separate cross motion of defendants Jaber Jubron and Miad M. Jubran, for summary judgment dismissing the complaint insofar as asserted against them on the ground that he 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 the cross motions for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and substituting therefor a provision denying the cross motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff failed to make a prima facie showing on his motion for summary judgment that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, as he was required to do in order to prevail (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; see also DeMarchi v Martinez, 224 AD2d 651). Although a fracture constitutes a serious injury within the meaning of the statute (see Insurance Law § 5102[d]), the affirmation of the plaintiff's treating physician noting fractures in the plaintiff's cervical spine was insufficient to satisfy the plaintiff's obligation on the motion because it was submitted for the first time in reply (see Hoyte v Epstein, 12 AD3d 487, 488; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416, 417) and, in any event, did not explain the physician's failure to note the alleged fracture during the two years in which the physician treated the plaintiff prior to the date of the affirmation (see Petinrin v Levering, 17 AD3d 173, 174; Broderick v Spaeth, 241 AD2d 898, 900-901). Since the plaintiff failed to establish prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of the opposition papers of the defendants Miad M. Jubran and Karim Mounir (see Coscia v 938 Trading Corp, 283 AD2d 538).

The Supreme Court, however, erred in granting the cross motions 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). The report of the plaintiff's treating chiropractor, who examined the plaintiff several days after the subject accident, established limitations in the plaintiff's thoracolumbar spine range of motion and the report of the plaintiff's treating physician noted fractures in the plaintiff's cervical spine. The defendants' submission of these documents precluded a finding that they were entitled to judgment dismissing the complaint as a matter of law (see Lesane v Tejada, 15 AD3d 358; Kolios v Znack, 237 AD2d 333; Mendola v Demetres, 212 AD2d 515). Since the defendants failed to satisfy their burden in support of the motion, we need not address the sufficiency of the plaintiff's papers submitted in opposition (see Coscia v 938 Trading Corp, supra).
MILLER, J.P., KRAUSMAN, SPOLZINO, FISHER and DILLON, JJ., concur.

Ali v.  Korostelev

Bryan F. Madden, Rockville Centre, for appellants.
Ephrem J. Wertenteil, New York, for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 6, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff alleged that as a result of a car accident on July 23, 2001, he suffered a "serious injury" under Insurance Law § 5102(d). He sought recovery under the statute based on: (1) "permanent loss of use of a body organ, member, function or system"; (2) "permanent consequential limitation of use of a body organ or member"; (3) "significant limitation of use of a body function or system"; and (4) a "medically determined injury or impairment of a non-permanent nature which prevent[ed him] from performing substantially all of [his] usual and customary daily activities for not less than ninety days during the one hundred and eighty days" immediately following the accident.

However, the medical affirmations submitted in support of defendants' motion for summary judgment were sufficient to sustain defendants' burden of establishing that plaintiff had not met the "serious injury" threshold (see Insurance Law § 5102[d]). Plaintiff then submitted an affirmation from his treating physician, an affirmation from a radiologist, hospital records, a sworn MRI report, and his own affidavit. However, these documents, viewed individually and collectively, failed to demonstrate that the nature or severity of the shoulder and spinal injuries sustained by plaintiff met the serious injury threshold. Accordingly, we dismiss the complaint.

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

D'Onofrio v.  Arsenault

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant.
Frank J. Santo, Brooklyn, N.Y. (William R. Santo of counsel),
for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated March 15, 2005, as 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 insofar as appealed from, with costs.

The defendant failed to establish his prima facie entitlement to judgment as a matter of law by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent a Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed medical report of the defendant's examining neurologist indicated the existence of limitations in the range of motion of the plaintiff's lumbar spine (see Grady v Jacobs, 32 AD3d 994; Sano v Gorelik, 24 AD3d 747; Spuhler v Khan, 14 AD3d 693; Omar v Bello, 13 AD3d 430; Scotti v Boutureira, 8 AD3d 652). Since the defendant failed to meet his initial burden of establishing a prima facie case, it is unnecessary to consider whether the plaintiff's papers submitted in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Grady v Jacobs, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
MILLER, J.P., KRAUSMAN, SPOLZINO, FISHER and DILLON, JJ., concur.

 
Fallon v Esposito

 Before: Cardona, P.J., Spain, Carpinello, Rose and Lahtinen, JJ.
Pirrotti Law Firm, L.L.C., Scarsdale (Anthony Pirrotti
Jr. of counsel), for appellants.
Boeggeman, George, Hodges & Corde, Albany (Paul
A. Hurley of counsel), for respondents.

MEMORANDUM AND ORDER


Lahtinen, J.

Appeal from a judgment of the Supreme Court (Connor, J.), entered September 16, 2005 in Ulster County, upon a verdict rendered in favor of defendants.

Plaintiff James Fallon (hereinafter plaintiff) was operating a sport utility vehicle in the City of Kingston, Ulster County, when he reportedly made a sudden stop and was struck in the rear by a sport utility vehicle owned by defendant John McCauley and operated by defendant Eric Esposito (hereinafter defendant). Plaintiff and his wife, derivatively, commenced this action asserting that plaintiff sustained certain injuries in the accident that qualified as serious injuries under Insurance Law § 5102 (d). Following a trial, the jury determined that plaintiff and defendant were equally responsible for the accident and that plaintiff failed to prove that he suffered a serious injury as a result of the accident. Plaintiffs' motion to set aside the verdict was denied and this appeal ensued.

We consider first plaintiffs' argument that the jury's finding of no serious injury should be set aside as against the weight of the evidence. To prevail on their weight of the evidence argument, plaintiffs must establish that "the proof presented at trial so strongly favored [their] case that a contrary verdict could not have been reached upon any fair interpretation of that evidence" (Howe v Wilkinson, 275 AD2d 876, 876 [2000] [internal quotation marks omitted]; see Fisher v Jackstadt, 291 AD2d 689, 691 [2002]). It is not enough to show that a different verdict would be reasonable since the jury's "verdict will be accorded deference if credible evidence exists to support its interpretation" (Cocca v Conway, 283 AD2d 787, 788-789 [2001], lv denied 96 NY2d 721 [2001]; see Warnke v Warner-Lambert Co., 21 AD3d 654, 657 [2005]).

Evidence at trial indicated that this was a low-speed accident in which damage to plaintiff's vehicle was confined to the rear bumper. Plaintiff went home following the accident, but sought medical attention later in the day. At the time of the accident, plaintiff was under medical care for a work-related injury for which he was temporarily out of work. About a month after the accident, he returned to employment and, thereafter, took another job that entailed both a long commute and strenuous labor at the workplace.

Medical proof included an MRI conducted within a month of the accident which revealed a disc bulge at L4-L5 and disc herniations at C5-6 and C6-7. While plaintiffs presented expert testimony tying these conditions to the accident and to physical limitations that plaintiff claimed to be experiencing, defendants provided contrary expert proof. Defendants' expert, neurologist Christopher Calder, testified that, based on his examination of plaintiff and review of plaintiff's medical records including his MRI films, it was his opinion that the bulging and herniated discs were caused by a progressive degenerative condition. He stated that, other than perhaps a minor cervical strain or minor lumbar strain, plaintiff's medical problems were not caused by the accident. As to the atrophy of plaintiff's left arm, Calder also opined that it was not related to the accident. Faced with conflicting medical evidence, the jury credited defendants' expert (see Howe v Wilkinson, supra at 876-877), who provided ample proof that the subject accident did not cause plaintiff to suffer a serious injury. Upon review of the record, we are unpersuaded that the jury's determination should be set aside as against the weight of the evidence. The remaining issues are academic.

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

ORDERED that the judgment is affirmed, with costs.

 Flanagan v Klein

Lipsitz Green Scime Cambria Llp, Buffalo (John A. Collins Of Counsel), For Plaintiff-Appellant.
Barth Sullivan Behr, Llp, Buffalo (Philip B. Abramowitz Of Counsel), For Defendants-Respondents.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the complaint, as amplified by the bill of particulars, with respect to the significant limitation of use of a body function or system, permanent consequential limitation of use of a body organ or member, and 90/180 categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for personal injuries arising from an automobile accident, and appeals from an order granting defendants' motion for summary judgment dismissing the complaint. We agree with plaintiff that Supreme Court erred in granting the motion in its entirety. The complaint, as amplified by the bill of particulars, alleged that plaintiff sustained a serious injury under four of the categories set forth in Insurance Law § 5102 (d), to wit, the permanent loss of use, significant limitation of use, permanent consequential limitation of use, and the 90/180 categories. We note that, inasmuch as plaintiff does not contend on appeal that the court erred in dismissing his claim of serious injury under the permanent loss of use category, he is deemed to have abandoned that claim (see Ciesinski v Town of Aurora, 202 AD2d 984).

Contrary to the contention of defendants, they failed to meet their initial burden of establishing their entitlement to judgment as a matter of law with respect to the 90/180 category of serious injury (see Winslow v Callaghan, 306 AD2d 853, 853-854). We therefore modify the order accordingly.

With respect to the remaining two categories of serious injury, defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting the affirmation of the physician who performed a medical examination of plaintiff on behalf of defendants. That physician opined that plaintiff has no ongoing disability or medical restrictions that are causally related to the accident. In opposition, however, plaintiff submitted evidence consisting of medical evidence containing objective medical findings and diagnostic tests indicating that plaintiff sustained a qualifying injury (see Tankersley v Szesnat, 235 AD2d 1010, 1012), including physician reports, chiropractic records, MRI reports, and an affidavit from his treating chiropractor. That evidence was sufficient to raise triable issues of fact whether plaintiff sustained a serious injury under the significant limitation of use and permanent consequential limitation of use categories of serious injury (see Brannan v Brownsell, 23 AD3d 1106, 1107; Parkhill v Cleary, 305 AD2d 1088, 1089; see also Pittman v Rickard, 295 AD2d 1003, 1003-1004). We therefore further modify the

order accordingly.

Grobman v. Chernoff


 

Roura & Melamed (Alexander J. Wulwick, New York, N.Y., of
counsel), for appellant.
John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel),
for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated January 20, 2006, as granted that branch of the motion of the defendants Rhonda Grobman and Adam Chernoff which was to compel her to proceed to arbitration on the issue of whether she sustained a serious injury withing the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Adam Chernoff and Rhonda Grobman which was to compel the plaintiff to proceed to arbitration on the issue of whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) is denied.

At the conclusion of the damages phase of a bifurcated trial, the jury returned a verdict finding that the plaintiff had sustained an injury which resulted in a "permanent consequential limitation of use of a body organ or member," and thus constituted a "serious injury" within the meaning of Insurance Law § 5102(d). The jury awarded the plaintiff damages for past pain and suffering and future medical expenses, but failed to award her damages for future pain and suffering. A judgment was entered upon the jury verdict, and the plaintiff appealed, contending, inter alia, that the damages verdict was inconsistent and the sums awarded inadequate. Although the defendants Adam Chernoff and Rhonda Grobman (hereinafter the defendants) cross-appealed from the judgment, they failed to perfect their cross appeal, and it was dismissed as abandoned. In a decision and order dated December 1, 2003, this court concluded that the jury's verdict finding that the plaintiff had sustained a permanent serious injury could not be reconciled with the failure to award her damages for future pain and suffering, and remitted the matter solely for a new trial on the issue of damages. The parties thereafter agreed to submit the issue of damages to arbitration, but a dispute arose as to whether the arbitration should encompass the issue of serious injury.

Under these circumstances, the Supreme Court erred in granting that branch of the defendants' motion which was to compel the plaintiff to proceed to arbitration on the issue of whether she sustained a serious injury within the meaning of Insurance Law § 5102(d). The jury's determination that the plaintiff sustained a serious injury, which the defendants failed to challenge on appeal, constituted a final and binding determination of this issue, especially in light of its award of future medical expenses. Accordingly, the issue of whether the plaintiff sustained a serious injury may not be relitigated in arbitration (see Singh v Friedson, 10 AD3d 721; Beresford v Waheed, 302 AD2d 342; see also Matter of Beckett v LLJV Dev. Corp., 224 AD2d 268; Smyczynski v Genesis Mktg. Group of Am., 185 AD2d 658).
MILLER, J.P., KRAUSMAN, SPOLZINO, FISHER and DILLON, JJ., concur.
 

Jocelyn v. Singh Airport Serv.

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for
respondent Singh Airport Service.
James P. Nunemaker, Jr., Uniondale, N.Y. (Marcella Gerbasi
Crewe of counsel), for respondent
Phyllis S. Fichtenholtz.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated November 14, 2005, which granted the separate motions of the defendants Singh Airport Service and Phyllis S. Fichtenholtz for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants Singh Airport Service and Phyllis S. Fichtenholtz failed on their separate motions for summary judgment to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The defendants' medical experts, in their reports attached to the respective moving papers, never addressed the claim, clearly set forth in the plaintiff's verified bill of particulars, that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The defendants' respective physicians each first examined the plaintiff more then three years after the accident. Although all of the physicians stated that the plaintiff was not disabled when they examined her, none of them addressed the possibility that she had a medically determined injury or impairment immediately following the accident that affected her activities during the 180 days immediately following the accident (see Talabi v Diallo, 32 AD3d 1014; Volpetti v Yoon Kap, 28 AD3d 750, 751; Sayers v Hot, 23 AD3d 453, 454). Since the defendants failed to establish their respective prima facie burdens, it is unnecessary to consider whether the plaintiff's papers in opposition were sufficient to raise a triable issue of fact (see Talabi v Diallo, supra; Volpetti v Yoon Kap, supra; Sayers v Hot, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
SCHMIDT, J.P., CRANE, RIVERA, SKELOS and LUNN, JJ., concur.

 Kilmer v. Strek

 
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in its entirety and dismissing the complaint and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Mary Kilmer (plaintiff) when the vehicle she was driving was struck from behind by a vehicle driven by defendant. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). Supreme Court properly granted the motion with respect to the significant limitation of use, permanent consequential limitation of use and 90/180 categories of serious injury. The court erred, however, in denying the motion with respect to the sole remaining category, i.e., significant disfigurement, and we therefore modify the order accordingly. Plaintiffs' allegation of serious injury under the significant disfigurement category is based upon a surgical scar resulting from surgery to repair cervical disc herniation allegedly caused by the accident (see generally Judd v Walton, 259 AD2d 1016, 1017). Defendant met her burden on the motion by presenting evidence establishing that plaintiff's alleged injury preexisted the accident, the accident did not aggravate that injury and surgery was necessitated by the preexisting condition (see Caldwell v Grant [appeal No. 2], 31 AD3d 1154, 1155; Clark v Perry, 21 AD3d 1373, 1374). The opinion of plaintiffs' expert that 10% of the need for surgery is attributable to the accident and 90% to plaintiff's preexisting condition has no objective medical basis and is therefore insufficient to raise an issue of fact (see Carter v Full Serv., Inc., 29 AD3d 342, 344, lv denied 7 NY3d 709; Montgomery v Pena, 19 AD3d 288, 290). Because plaintiffs failed to meet their burden on the issue whether the need for surgery was causally related to the accident (see Baez v Rahamatali, 6 NY3d 868, 869), they necessarily also failed to meet their burden on the issue whether the resulting surgical scar was causally related to the accident.

O'Bradovich v. Mrijaj

Peter A. Frankel, New York, for appellant.
Boeggeman, George, Hodges & Corde, P.C., White Plains
(Daniel O'Neill of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucy Billings, J.), entered September 30, 2005, which granted defendant's motion for
summary judgment dismissing the complaint in its entirety,
unanimously affirmed, without costs.

Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Her expert opined that the accident caused a fracture of her calcaneus, the heel bone adjacent to the ankle. However, on this record, there is no admissible evidence that plaintiff was ever diagnosed by her treating physician with a fracture that resulted from this accident. The unsworn MRI report merely contains the reference to a "cortical or impact fracture." The medical records of plaintiff's treating physician neither reference this MRI nor adopt any findings contained therein pertaining to a possible fracture. Plaintiff's evidence shows only that she had ankle surgery to debride an osteophyte and remove bone spurs. The operative report makes no mention of a fracture, nor does plaintiff's expert (also her treating physician) refer to such a fracture in his initial evaluation of plaintiff approximately four months after the accident.

We have considered and rejected plaintiff's other arguments as without merit.

Olson v. Russell

Christopher S. Olson, Huntington, N.Y., for appellants.
Theodore A. Stamas, Carle Place, N.Y. (Ira Cooper of
counsel), for respondent.
James P. Nunemaker, Jr., Uniondale, N.Y. (Kathleen E.
Fioretti of counsel), for plaintiff Charles
W. Olson on the counterclaim.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Suffolk County (Berler, J.), entered September 22, 2005, as granted the defendant's motion for summary judgment dismissing their complaint on the ground that the plaintiff Betty Olson did not sustain a serious injury within the meaning of Insurance Law § 5102(d), (2) a judgment of the same court dated November 10, 2005, as, upon the order, dismissed the complaint, and (3) an order of the same court entered January 9, 2006, which denied their motion, denominated as one for leave to renew and reargue, but which, in actuality, was for leave to reargue the defendant's prior motion. The notice of appeal from the order entered September 22, 2005, is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).

ORDERED that the appeals from the orders are dismissed; and it is further, 

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

ORDERED that one bill of costs is payable by the appellants to the respondent.

The appeal from the intermediate order entered September 22, 2005, must be dismissed because the right of direct appeal therefrom terminated with entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

On his motion for summary judgment, the defendant made a prima facie showing that the plaintiff Betty Olson (hereinafter the injured 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 Elyer, 79 NY2d 955; see also Giraldo v Mandanici, 24 AD3d 419; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiffs failed to raise a triable issue of fact. While the affirmation of the plaintiffs' examining orthopedic surgeon set forth range of motion findings that were compared to the normal range of motion and based on objective testing, it is unclear from that affirmation whether those findings were based on recent examinations of the injured plaintiff (see Legendre v Bao, 29 AD3d 645; Tudisco v James, 28 AD3d 536; Barzey v Clarke, 27 AD3d 600; Moore v Edison, 25 AD3d 672; Murray v Hartford, 23 AD3d 629; Farozes v Kamran, 22 AD3d 458; Batista v Olivo, 17 AD3d 494; Silkowski v Alvarez, 19 AD3d 476; Constantinou v Surinder, 8 AD3d 323; Elgendy v Nieradko, 307 AD2d 251; Kauderer v Penta, 261 AD2d 365). Moreover, it is clear that the plaintiffs' treating orthopedic surgeon relied on the unsworn report of another doctor in reaching his conclusions (see Friedman v U-Haul Truck Rental, 216 AD2d 266; see also Vallejo v Builders For the Family Youth, Diocese of Brooklyn, 18 AD3d 741). Without any objective evidence of serious injury, the injured plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether she sustained a serious injury (see Rodney v Solntseu, 302 AD2d 442; Fisher v Williams, 289 AD2d 288; Paulino v Xiaoyu Dai, 279 AD2d 619). Furthermore, the plaintiffs failed to submit competent medical evidence that the injured plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).

The plaintiffs' motion, denominated as one for leave to renew and reargue, was not based upon new facts which were unavailable at the time of the prior motion. In addition, the plaintiffs failed to offer a valid excuse as to why the evidence offered in support of their motion for leave to renew and reargue was not submitted in opposition to the defendant's motion for summary judgment which sought to dismiss the plaintiffs' complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Therefore, the motion, though denominated as a motion for leave to renew and reargue, was in fact a motion for leave to reargue, the denial of which is not appealable (see Crawn v Sayah, 31 AD3d 367; Malankara Archdiocese of Syrian Orthodox Church in N. Am. v Malankara Jacobite Ctr. of N. Am., Inc., 24 AD3d 626). Therefore, the appeal from the order entered January 9, 2006, must be dismissed.
SCHMIDT, J.P., RITTER, MASTRO, FISHER and DILLON, JJ., concur.

Russo v Cooke

Martino & Weiss, Mount Vernon, N.Y. (Louis J. Martino of
counsel), for appellant.
Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains,
N.Y. (Lynn M. Dukette 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, Westchester County (LaCava, J.), entered November 10, 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 reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The plaintiff claims that she injured her lower back in the subject accident and a magnetic resonance imaging scan indicated a disc herniation at L4-5. However, the affirmed medical report of the defendants' examining neurologist did not reflect that he ever tested the range of motion of that region of the plaintiff's body, although he did test the range of motion of the plaintiff's cervical spine (see DeJesus v Tanenbaum, 29 AD3d 852; Beyel v Console, 25 AD3d 636; Edwards v New York City Tr. Auth., 17 AD3d 628). Under the circumstances, the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law. In view of the foregoing, it is not necessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see DeJesus v Tanenbaum, supra; Beyel v Console, supra; Edwards v New York City Tr. Auth., supra; Coscia v 938 Trading Corp., 283 AD2d 538).  
FLORIO, J.P., RITTER, GOLDSTEIN and COVELLO, JJ., concur.

Doyaga v.Teleeba, Inc.

Subin Associates, LLP (Pollack, Pollack, Isaac & De Cicco, New
York, N.Y. [Brian J. Isaac and Kenneth J. Gorman] of counsel), for
appellants.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y.
(Patrick M. Murphy of counsel), for
respondents Teleeba, Inc., and
Mohamed A. Salama.
James P. McCarthy, East Elmhurst, N.Y., for respondent Gabriel
Yakubovich.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated September 2, 2005, which granted the motion of the defendant Gabriel Yakubovich, and the separate motion of the defendants Teleeba, Inc., and Mohamed A. Salama, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Walter Teruel 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 payable to the defendants appearing separately and filing separate briefs.

The defendants met their respective prima facie burdens on their motions for summary judgment demonstrating that the plaintiff Walter Teruel 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; see also Kearse v New York City Tr. Auth., 16 AD3d 45). Contrary to the plaintiffs' contention, in opposition, they failed to raise a triable issue of fact. The affidavit of the plaintiffs' treating physician was insufficient to establish the existence of a serious injury since it relied on the unsworn reports of other doctors (see Friedman v U-Haul Truck Rental, 216 AD2d 266; see also Ramirez v Parache, 31 AD3d 415; Vallejo v Builders For the Family Youth, Diocese of Brooklyn, 18 AD3d 741; Mahoney v Zerillo, 6 AD3d 403). In the absence of any objective medical evidence that Walter Teruel sustained a serious injury, his self-serving affidavit was insufficient to raise a triable issue of fact (see Felix v New York City Tr. Auth., 32 AD3d 527; Ramirez v Parache, 31 AD3d 415; see e.g. Fisher v Williams, 289 AD2d 288). In this regard, the plaintiffs failed to proffer competent medical evidence indicating that Walter Teruel was unable to perform substantially all of his daily activities for not less than 90 out of the first 180 days as a result of the subject accident (see Felix v New York City Tr. Auth., supra; Ramirez v Parache, supra; Sainte-Aime v Ho, 274 AD2d 569).
FLORIO, J.P., RITTER, GOLDSTEIN and COVELLO, JJ., concur.

Elder v.  Stokes

James P. Nunemaker, Jr., Uniondale, N.Y. (Gene W. Wiggins of
counsel), for appellant.
Peters Berger Koshel & Goldberg, P.C., Brooklyn, N.Y. (Marc
A. Novick of counsel), 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 (Johnson, J.), dated November 17, 2005, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendant established her prima facie entitlement to judgment as a matter of law by demonstrating 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). In opposition, the plaintiff failed to raise a triable issue of fact. While the affirmed medical report of the plaintiff's examining physician noted limitations in the plaintiff's range of motion of his cervical and lumbar spine, based on a recent examination, this report failed to provide any medical proof that was contemporaneous with the subject accident that showed range of motion limitations in his spine (see Felix v New York City Tr. Auth., 32 AD3d 527; Ramirez v Parache, 31 AD3d 415; Bell v Rameau, 29 AD3d 839; Ranzie v Abdul-Massih, 28 AD3d 447; Li v Woo Sung Yun, 27 AD3d 624; Suk Ching Yeung v Rojas, 18 AD3d 863; Nemchyonok v Peng Liu Ying, 2 AD3d 421). Moreover, the plaintiff's examining physician relied on the unsworn reports of others in reaching his conclusions (see Felix v New York City Tr. Auth., supra; Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266). The remaining submissions of the plaintiff, with the exception of his own affidavit and hospital records, were without probative value in opposing the motion since they were unsworn or unaffirmed (see Grasso v Angerami, 79 NY2d 813; Felix v New York City Tr. Auth., supra; Bycinthe v Kombos, 29 AD3d 845; Hernandez v Taub, 19 AD3d 368; Pagano v Kingsbury, 182 AD2d 268). The plaintiff's hospital records, which were properly submitted in opposition since the defendant submitted the record in support of her motion (see Kearse v New York City Tr. Auth., 16 AD3d 45), did not establish that the plaintiff sustained a serious injury. In the absence of any 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 (see Felix v New York City Tr. Auth., supra; Fisher v Williams, 289 AD2d 288; see also Sainte-Aime v Ho, 274 AD2d 569; DiNunzio v County of Suffolk, 256 AD2d 498).
SCHMIDT, J.P., RIVERA, SKELOS and LUNN, JJ., concur.

Flores v. Stankiewicz

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant Viola
Stankiewicz.
Robin, Harris, King, Yuhas, Fodera & Richman, New York,
N.Y. (Deborah F. Peters of counsel),
for appellant Shyti Minir.
Harmon, Linder & Rogowsky, Mineola, N.Y. (Mitchell Dranow
of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants separately appeal from an order of the Supreme Court, Kings County (Douglas, J.), dated November 16, 2005, which denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs to the defendants, and the respective motions for summary judgment dismissing the complaint insofar as asserted against the defendants are granted.

The defendants satisfied their respective burdens on this motion for summary judgment dismissing the complaint by establishing, prima facie, on the basis of the same submissions, 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; Kearse v New York City Tr. Auth., 16 AD3d 45).

In opposition, the plaintiff failed to raise a triable issue of fact. The opinions expressed by the plaintiff's treating neurologist asserted on the basis of the unsworn and unaffirmed reports of other physicians were not properly considered by the court (see Vallejo v Builders For Family Youth, Diocese of Brooklyn, 18 AD3d 741; Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266). The conclusions reached by the neurologist on the basis of his own observations and the magnetic resonance imaging report submitted by the plaintiff, which, although uncertified, was properly considered because it was relied upon by the defendants (see Zarate v McDonald, 31 AD3d 632; Ayzen v Melendez, 299 AD2d 381), were insufficient to raise a triable issue of fact as to the existence of a serious injury within the meaning of the statute. A bulging or herniated disc is not evidence of 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 Yakubov v CG Trans Corp., 30 AD3d 509; Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241). The plaintiff's affidavit was insufficient to satisfy that requirement (see Yakubov v CG Trans Corp., supra). The plaintiff also failed to proffer competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident (see Bravo v Rehman, 28 AD3d 694; Sainte-Aime v Ho, 274 AD2d 569).

The Supreme Court should not have considered the plaintiff's alleged documentary proof as it was submitted in counsel's self-entitled "Supplemental Affirmation in Opposition," which was, in effect, an improper sur-reply (see CPLR 2214; Mu Ying Zhu v Zhi Reng Lin, 1 AD3d 416; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470).
MILLER, J.P., KRAUSMAN, SPOLZINO, FISHER and DILLON, JJ., concur.

Holley v. Salsa, Inc.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for appellants.
Elliot Ifraimoff & Associates, P.C., Forest Hills, N.Y. (David E.
Waterbury of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated February 15, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury through the affirmed medical reports of their examining neurologist and orthopedic surgeon (see Toure v Avis Rent a Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiff submitted an affirmation from her treating physician specifying the decreased range of motion in her lumbar and cervical spines as evidenced by objective findings made shortly after the subject accident, as well as on a recent examination, along with evidence of herniated discs and disc bulges as confirmed by his reading of magnetic resonance imaging films. The plaintiff's treating physician also asserted that the plaintiff's injuries were permanent and causally related to the subject motor vehicle accident. This evidence was sufficient to raise a triable issue of fact (see Toure v Avis Rent a Car Sys., supra; Clervoix v Edwards, 10 AD3d 626, 627; Acosta v Rubin, 2 AD3d 657, 659). SCHMIDT, J.P., CRANE, RIVERA, SKELOS and LUNN, JJ., concur.

Holtzman v. Bishop

Ira M. Perlman (John Evans Bos, New York, N.Y., of counsel), for
appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Robin Mary Heaney
and Francis J. Scahill 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, Queens County (Grays, J.), dated July 5, 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 reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

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) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). While the defendants' examining orthopedist set forth his range of motion findings concerning the plaintiff's lumbar spine in his affirmed medical report, he failed to compare those recorded ranges of motion with normal ranges 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). Furthermore, the defendants never adequately addressed the claim that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The defendants' examining neurologist and orthopedist each examined the plaintiff more than four years post-accident. Although both doctors stated that she was not disabled when they examined her, neither doctor addressed the possibility that she had a medically-determined injury or impairment immediately following the accident that affected her activities during the 180 days immediately following the accident (see Talabi v Diallo, 32 AD3d 1014; Sayers v Hot, 23 AD3d 453). While the defendants' examining radiologist reviewed the magnetic resonance imaging films taken of the plaintiff's cervical and lumbar spine in July 2000, the plaintiff's claimed injuries went beyond merely those regions of her spine. Therefore, the affirmed medical report of the defendants' examining radiologist did not rule out the fact that the plaintiff may have sustained a medically-determined injury to those other areas of her body alleged to have been injured as a result of the subject accident.

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Mondi v Keahon, supra; Talabi v Diallo, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
MILLER, J.P., KRAUSMAN, SPOLZINO, FISHER and DILLON, JJ., concur.

Orna v. Singh

William Pager, Brooklyn, N.Y. (Hattie F. Ragone of counsel), for
appellant.
Timothy M. Sullivan, New York, N.Y., for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated August 9, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants established their prima facie burden on their motion, via their submissions, 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; Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiff failed to raise a triable issue of fact.
MILLER, J.P., KRAUSMAN, SPOLZINO, FISHER and DILLON, JJ., concur.

Pijuan v. Brito

Mallilo & Grossman, Flushing, N.Y. (Christopher L. Bauer of
counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, N.Y. (Gregory A.
Cascino of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated November 14, 2005, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

In support of his motion for summary judgment dismissing the complaint, the defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The defendant never addressed the claim, clearly set forth in the plaintiff's verified bill of particulars, that the plaintiff sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The defendant's examining orthopedist evaluated the plaintiff on March 14, 2005, almost four years after the accident. Although he stated that the plaintiff was not disabled when he examined the plaintiff, he never addressed the possibility that the plaintiff had a medically-determined injury or impairment immediately following the subject accident that affected his activities during the 180 days immediately following the accident (see Talabi v Diallo, 32 AD3d [*2]1014, 1014-1015; Sayers v Hot, 23 AD3d 453, 454).

The affirmed medical report of the defendant's examining radiologist also did not establish the absence of a serious injury under this category of Insurance Law § 5102(d). The defendant's radiologist admitted in his report that upon his review of the magnetic resonance imaging film of the plaintiff's cervical spine, taken shortly after the subject accident, there was a tiny disc bulge at C5-6. This report did not concern any injuries or impairments that may have occurred to the plaintiff's lumbar spine during the 180 days immediately following the subject accident. Therefore, the affirmed medical report of the defendant's examining radiologist did not rule out the possibility that the plaintiff may have sustained a medically-determined injury or impairment of a non-permanent nature to his cervical or lumbar spine which prevented him from performing substantially all of the material acts that constituted his usual and customary daily activities during the 180 days immediately following the subject accident.

Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiff's papers submitted in opposition 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). CRANE, J.P., SANTUCCI, MASTRO and LIFSON, JJ., concur.

Zinger v. Zylberberg

Corigliano, Geiger, Verrill, McEnaney & Brandwein, Jericho, N.Y.
(Kathleen M. Geiger of counsel), for appellant.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated December 9, 2005, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendant established prima facie entitlement to judgment as a matter of law by tendering proof in evidentiary form that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Giraldo v Mandanici, 24 AD3d 419; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether either plaintiff sustained a serious injury. While the affirmed medical reports of the plaintiffs' examining physician showed limitations in the range of motion of the respective plaintiffs' cervical and lumbar spines based on recent examinations, the plaintiffs failed to proffer any medical evidence that was contemporaneous with the subject accident that showed a limitation in their range of motion (see Ranzie v Abdul-Massih, 28 AD3d 447, 448; Li v Woo Sung Yun, 27 AD3d 624, 625; Suk Ching Yeung v Rojas, 18 AD3d 863, 864; Nemchyonok v Peng Liu Ying, 2 AD3d 421). Their examining physician also failed to acknowledge the fact that both plaintiffs were involved in an auto accident in 2003, which occurred subsequent to the subject accident and before he examined them. Thus, his findings were speculative that the spinal injuries they allegedly sustained were caused by the subject accident (see Tudisco v James, 28 AD3d 536, 537; Bennett v Genas, 27 AD3d 601, 601-602; Allyn v Hanley, 2 AD3d 470, 471). The plaintiffs also failed to explain their gaps in treatment (see Pommells v Perez, 4 NY3d 566, 574; Nemchyonok v Peng Liu Ying, supra).

As specifically related to the plaintiff Aleksandr Zinger, the plaintiffs' examining physician also failed to address the finding by the defendant's examining radiologist that Aleksandr's herniated disc at C5-6 was the result of degeneration unrelated to the subject accident (see Giraldo v Mandanici, supra at 420; Lorthe v Adeyeye, 306 AD2d 252, 253; Pajda v Pedone, 303 AD2d 729, 730).

Moreover, the plaintiffs failed to proffer any competent medical evidence that either plaintiff was unable to perform all of his or her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).

Accordingly, the Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint.
FLORIO, J.P., CRANE, SPOLZINO and COVELLO, JJ., concur.

 

237 W. 230 Street Realty Corp.  v. Castle Oil Corporation

Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Howard J.
Newman and Elan Raday of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York,
N.Y. (Gregory J. Dell of counsel), for
respondents.

DECISION & ORDER

In an action to recover property damages resulting from the discharge of petroleum, the defendant Trans Service Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), entered March 3, 2005, as granted that branch of the motion of the defendants Castle Oil Corporation and Old Republic Insurance Co. which was for summary judgment on their cross claim for indemnification against the defendant Trans Service Corporation.

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

As the Supreme Court correctly determined, the defendants Castle Oil Corporation (hereinafter Castle) and Old Republic Insurance Co. demonstrated their prima facie entitlement to summary judgment by establishing that the agreement between Castle and the defendant Trans Service Corporation (hereinafter Trans Service) unambiguously required the latter to indemnify Castle even if Castle was negligent and that, in any event, Castle was free of negligence in the incident giving rise to the plaintiff's claim in this action (see Margolin v New York Life Ins. Co., 32 NY2d 149, 153; Levine v Shell Oil Co., 28 NY2d 205, 211-212; New York Tel. Co. v Gulf Oil Corp., 203 AD2d 26, 28). In opposition, Trans Service failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).

Connecticut Indemnity Company v.  Schindler

Theodore Diament, New York, N.Y., appellant pro se.
Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Celeste
M. Butera, Cheryl F. Korman, and
Chris J. Fichtl of counsel), for
respondent.

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the limit of liability coverage under a professional liability policy issued by the plaintiff, Connecticut Indemnity Company, to its insureds, the defendants Albert Schindler and Albert L. Schindler, D.D.S., P.C., is $200,000 with respect to an underlying personal injury action entitled Diament v Schindler, pending in the Supreme Court, New York County, under Index No. 117970/01, the defendants appeal from an order and judgment (one paper) of the Supreme Court, Westchester County (Murphy, J.), entered May 26, 2005, which granted the plaintiff's motion for summary judgment and declared that the limit of liability coverage available was $200,000.

ORDERED that the appeal by the defendants Albert Schindler and Albert L. Schindler, D.D.S., P.C., is dismissed as abandoned (see 22 NYCRR 670.8[e][1]); and it is further,

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

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

The defendant Theodore Diament (hereinafter Diament), the injured plaintiff in the underlying dental malpractice action, was treated by the defendant Albert Schindler (hereinafter Schindler), from April 2, 1999, through August 31, 2000, for pain in his left jaw. It is alleged that Schindler misdiagnosed Diament's condition during the initial office visit, and then continued his misdiagnosis and mistreatment of Diament's condition for some time thereafter based upon that initial improper diagnosis. Ultimately, Diament was seen by another dentist that correctly diagnosed his condition as a cancerous cyst in his lower left jaw. As a result, Diament underwent surgery to remove the cyst and bone grafts to repair the damaged jawbone. Diament thereafter sued Schindler for the injury he sustained as a result of Schindler's alleged failure to diagnose the cyst in his jaw.

The plaintiff, Connecticut Indemnity Company (hereinafter Connecticut Indemnity), issued dental professional liability coverage to Schindler on an annual basis for the periods from June 20, 1998, through June 20, 2001. The Connecticut Indemnity policies expressly stated that "all damages arising from the same, related, repeated or continuous Dental Incident shall be deemed to arise from one Dental Incident." A "Dental Incident" was defined as "an act, error or omission in the rendering or failure to render professional services as a dentist." The policies also provided for a limit of $200,000 for each "Dental Incident."

After commencing the instant declaratory judgment action, Connecticut Indemnity moved for summary judgment on the basis that Theodore Diament's injury arose from only one cause, the failure to diagnose and properly treat the cyst in his jaw, and, therefore, it triggered only one "Dental Incident," thereby limiting the amount of liability available under the policy to $200,000. The Supreme Court agreed, granted Connecticut Indemnity's motion for summary judgment, and declared that the limit of liability coverage available was $200,000.

The construction of terms and conditions of an insurance policy that are clear and unambiguous presents a question of law to be determined by the court when the only issue is whether the terms as stated in the policy apply to the facts (see Caporino v Travelers Ins. Co., 62 NY2d 234, 239; Breed v Insurance Co. of N. A., 46 NY2d 351, 355; Raino v Navigators Ins. Co., 268 AD2d 419, 420). Where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning (see Raino v Navigators Ins. Co., supra; see also Government Empls. Ins. Co. v Kligler, 42 NY2d 863). However, any ambiguity in an insurance contract must be construed against the insurer and in favor of the policyholder (see Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44, 49).

Here, under the facts as alleged in Diament's complaint in the underlying dental malpractice action, Schindler failed to diagnose Diament's condition, i.e., the cyst, during the initial diagnostic exam, again failed to diagnose it during a subsequent wisdom tooth extraction, and continued to fail to diagnose it during post-extraction care. It was Schindler's alleged initial misdiagnosis and continued misdiagnosis, as well as his continued treatment of Diament based upon that continuing misdiagnosis, that led to Diament's alleged injury and subsequent surgery. As such, all the alleged departures in care by Schindler are, when viewed in their entirety, the "same, related, repeated or continued" acts, errors or omissions in the rendering or failure to render professional services as a dentist, i.e., the failure to properly diagnose and treat the cyst in Diament's jaw.

Since Diament's injury arose from the alleged "same, related, repeated or continuous" failure by Schindler to properly diagnose Diament, the Supreme Court correctly determined that the one "Dental Incident" limit of liability provisions of the policies would apply (see D'Auria v Zurich Ins. Co, 352 Pa Super 231; Wilson v Ramirez, 269 Kan 371; Aetna Cas. & Sur. Co. v Medical Protective Co., 575 F Supp 901; see also Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 173-174; Allied Grand Doll Mfg. Co. v Globe Indem. Co., 15 AD2d 901).

In the Matter of State Farm Insurance Company v. Colangelo

Marshall, Conway & Wright, P.C., New York, N.Y. (Christopher
T. Bradley and Stacy Snyder of counsel), for proposed additional
respondent-appellant.
Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains,
N.Y. (Lynn M. Dukette of counsel), for
petitioner-respondent.
Curtiss N. Buell, P.C., Port Chester, N.Y., for respondents-
respondents.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, National Continental Insurance Company appeals from a judgment of the Supreme Court, Westchester County (Carey, J.H.O.) dated September 23, 2005, which, after a framed-issue hearing, granted the petition and permanently stayed arbitration.

ORDERED that the judgment is affirmed, with costs.

Jeanne Colangelo and Richard Colangelo demanded arbitration of a claim for uninsured motorist benefits from their insurance company State Farm Insurance Company (hereinafter State Farm) after they allegedly sustained damages in a motor vehicle accident involving a truck owned by Stella Express Trucking (hereinafter Stella). State Farm commenced this proceeding to permanently stay arbitration on the ground that the truck was insured by National Continental Insurance Company (hereinafter NCIC) at the time of the accident. After NCIC claimed that the policy had been cancelled prior to the accident, the Supreme Court ordered a framed-issue hearing on coverage. After the hearing, the Supreme Court determined that the NCIC policy was not validly cancelled under controlling New Jersey law based upon two separate and independent grounds, and permanently stayed arbitration. NCIC appeals. We affirm.

On appeal, NCIC does not challenge the Supreme Court's determination that the failure to provide notice of the cancellation to the producer (broker) of the policy rendered the attempted cancellation ineffective under controlling New Jersey Law, and that this constituted a separate and independent basis to hold the purported cancellation of the policy ineffective.

NCIC's remaining contentions are without merit.
CRANE, J.P., RITTER, LUNN and COVELLO, JJ., concur.

Reyes v. Diamond State Insurance Company

Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F.
Ingham of counsel), for appellant.
Nicoletti Gonson & Sprinner, LLP, New York, N.Y. (Edward S.
Benson of counsel), for respondent.

 

DECISION & ORDER

In an action for a judgment declaring that the defendant Diamond State Insurance Company is obligated to provide excess coverage with respect to an underlying personal injury action entitled Astacio v Dollar Rent A Car Systems, pending in the Supreme Court, Kings County, under Index No. 4283/02, pursuant to a policy of insurance issued to the plaintiff, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated March 9, 2005, which denied her motion for summary judgment declaring that the defendant Diamond State Insurance Company was obligated to provide the excess coverage, and granted the cross motion of the defendant Diamond State Insurance Company for summary judgment declaring that it is not obligated to provide the excess coverage.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate judgment declaring that the defendant Diamond State Insurance Company was obligated to provide the excess coverage with respect to the underlying personal injury action pursuant to the policy of insurance.

An insurer must give written notice of a disclaimer of coverage "as soon as is reasonably possible" (Insurance Law § 3420) after it "first learns of the accident or of grounds for disclaimer of liability or denial of coverage" (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029; see Matter of New York Cent. Mut. Fire Ins. Co. v Aguirre, 7 NY3d 772, 774; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69; Matter of Allstate Ins. Co. v Cruz, 30 AD3d 511, 512). This rule applies not only to an insurer's disclaimer of primary insurance coverage, but to a disclaimer of excess coverage as well (see Mann v Gulf Ins. Co., 3 AD3d 554, 555-556). Although the obligation of an excess insurance carrier is not implicated where the insured fails, through no fault of the excess insurer, to make a claim against the primary policy (see Matter of Allcity Ins. Co. [Sioukas], 51 AD2d 525, affd 41 NY2d 872), that situation is not presented here.

The plaintiff demonstrated her prima facie entitlement to summary judgment by showing that the subject car accident fell within the coverage provisions of the insurance policy issued by the defendant Diamond State Insurance Company (hereinafter Diamond), that Diamond disclaimed coverage on the ground that the driver of the automobile for which it provided excess liability insurance was an unauthorized driver, that Diamond learned of this ground for disclaiming coverage within days of the accident, when it received a copy of a police accident report (see Allstate Ins. Co. v Kuper, 140 AD2d 479, 480), and that Diamond did not disclaim for 50 days thereafter (see First Fin. Ins. Co. v Jetco Contr. Corp., supra; National Cas. Co. v Levittown Events, 191 AD2d 543; cf. Nigro v General Acc. Ins. Co. of N.Y., 239 AD2d 474). In opposition, Diamond failed to raise a triable issue of fact. Diamond proffered no excuse for its delay and it was not entitled to wait until the plaintiff's primary coverage was exhausted before disclaiming. To the extent that Gardner v Ryder Truck Rental (261 AD2d 505) holds to the contrary, it should no longer be followed.

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment declaring that Diamond was obligated to provide coverage, and denied Diamond's cross motion for summary judgment declaring that it was not so obligated.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that Diamond was obligated to provide the excess coverage with respect to the underlying personal injury action pursuant to the policy of insurance (see Lanza v Wagner, 11 NY2d 317, 334, cert denied 371 US 901).

 

Travelers Indemnity Company of America v. Pullini Water Services, Inc.

Lazare Potter Giacovas & Kranjac, LLP, New York, N.Y. (Stephen
M. Lazare and Marci Goldstein of counsel), for appellant.

 

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendants Pullini Water Services, Inc., and Pullini Water Main & Sewer Contractors, Inc., in an underlying action entitled Shepp v City of New York, pending in Supreme Court, Kings County, under Index No. 41613/99, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated May 18, 2005, which denied its motion for leave to enter a default judgment against those defendants based upon their failure to answer or appear in this action and for a declaration that it has no obligation to defend or indemnify them in the underlying action.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendants Pullini Water Services, Inc., and Pullini Water Main & Sewer Contractors, Inc., in the underlying action entitled Shepp v City of New York, pending in Supreme Court, Kings County, under Index No. 41613/99.

The plaintiff commenced this action for a judgment declaring that it has no obligation to defend or indemnify the defendants Pullini Water Services, Inc., and Pullini Water Main & Sewer Contractors, Inc. (hereinafter collectively Pullini), in the underlying action based on their lack of cooperation (see Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605, 606). The plaintiff established its entitlement to a default judgment against Pullini based on Pullini's failure to answer or appear in this action (see CPLR 3215[f]). The plaintiff established, through affidavits of its [*2]employee and of private investigators, as well as written correspondence, that it made diligent efforts to secure Pullini's cooperation, that the efforts were reasonably calculated to obtain that cooperation, and that Pullini willfully obstructed the plaintiff's defense of the underlying action (see Utica First Ins. Co. v Arken, Inc., 18 AD3d 644, 645). Given that the plaintiff commenced this action within one week of its last efforts to obtain Pullini's cooperation, the Supreme Court erred in finding that the plaintiff failed to comply with Insurance Law § 3420(d) (see generally Pennsylvania Lumbermans Mut. Ins. Co. v D & Sons Constr. Corp., 18 AD3d 843; Republic Franklin Ins. Co. v Pistilli, 16 AD3d 477; Generali-U.S. Branch v Rothschild, 295 AD2d 236, 237-238).