Coverage Pointers - Volume VIII, No. 16

New Page 1

Dear Coverage Pointers Subscribers: 

 

Event Alert

 

Don't miss the opportunity to sign up for the Federation of Defense & Corporate Counsel Litigation Management College or Graduate Program for the nation's most comprehensive and reasonably priced educational program for claims professionals.  For more information, visit the FDCC website, www.thefederation.org. The programs are held at the Emory University Conference Center in Atlanta, Georgia from June 17 to 21, 2007.

 

Kohane's Random Musings

 

            Wherever I travel, I meet Coverage Pointers subscribers; it's a wonderful experience.  I get the same question time and time again.  "Oh, YOU'RE the guy who sends me Coverage Pointers. How do you do it? And, do you have a real life?"  OK, I'll give up our secrets.  First of all. No.  There is no real life.  Indeed, I am a robot, similar to the one on Lost in Space.  But as to the other question, here's what we do:

 

            From the moment an issue is sent out on a Friday, we start the next issue immediately.  During the week, Serious Injury Starosielec and I begin scanning the appellate court decisions in the four appellate departments and the Court of Appeals.  Audrey Seeley, the undisputed Queen of No Fault, crafts her column and it shows up in my mailbox, like clockwork, on Thursday afternoon.  Steve. Audrey and I work on this each and every day so that on our alternate Friday, you, our loyal readers, have our publication in your mailbox. Sometimes, we'll get our other coverage gurus together and debate and dissect a decision, so we can give you a comprehensive analysis of the decisions rendered. On occasion, if there's time and we have a question, we'll call one of the lawyers involved in a reported decision to get some additional insight.

 

We recognize that our views on coverage (we do consider ourselves coverage purists) sometimes run against the grain of some of our readers.  Some decisions we like and support while a few of our readers might take a different spin on a reported decision .  That's ok.  We don't mind it.  There are a couple of reviews in this issue that might give rise to that kind of reaction.  We can take it.

 

            Our goal, of course, is to provide educational material.  We hope you continue to enjoy the publication as much as we enjoy presenting it to you. Feel free to call us for advice if you want or need it or send comments and suggestions as so many of you do.  We're here to serve our readership and we enjoy what we do.

 

            This week, I had the pleasure of speaking at an American Conference Institute program in NYC on the topic:  Protecting the Golden Goose, Insurance Coverage for Complex Cases.  If anyone's interested in the presentation, let me know.

 

Audrey's Angles

 

            Audrey Seeley reports on her column:

 

            We have an interesting mix of decisions this edition.  The insurers are continuing their battle in the downstate courts to provide appropriate affidavits demonstrating timely denial of claim to survive summary judgment.  If anyone has an affidavit that was successfully used to demonstrate a reasonable inference of mailing of a denial of claim I (as well as many others) would really appreciate receiving a redacted copy of it to tuck away for future use. In the arbitration world, Arbitrator McCorry issued a decision containing a very thoughtful discussion on the issue of whether an applicant must submit continuing claims to an insurer despite a denial of claim.

 

In House Training

 

Audrey has become a popular speaker at carriers throughout NY State and around the country, as carriers seek to be better acquainted with NY No Fault procedures.  She is booking for the spring and if you are looking for a delightful and knowledgeable speaker on No Fault, let her know. On the other hand, there's always me (or others on our coverage team - if you're not lucky enough to get Audrey) and you need a in-house training presentation on any of these topics: 

 

1.                    Primary and Excess Insurance - Rights & Responsibilities

2.                    SUM Claims Handling

3.                    Preventing Bad Faith Claims - First Party Cases

4.                    Preventing Bad Faith Claims - Liability Cases

5.                    Late Notice - How to Handle

6.                    The Cooperation Clause - How to Handle

7.                    NY Disclaimer Letter - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)

8.                    No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal 

9.                    No Fault Regs - Knowledge is Power

10.                 An Auto Liability Policy Primer

11.                 A CGL Policy Primer

12.                 A Homeowners Liability Policy Primer

13.                 EUO's Under First Party Policies

14.                 How to Resolve Coverage Disputes:  DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)

15.                 Insured Selected Counsel: When is it Necessary and How to Avoid it? 

16.                 Mediation and the Role of the Mediator

17.                 ADR and How to Get to "Yes".

18.                 The Internet as a Tool for the Claims Representative

19.                 Construction Cases - The Interplay Between Indemnity Agreements and Insurance Policies

20.                 Other Insurance, Additional Insureds and Priority of Coverage

 

 This Week's Issue

 

            This week's issue includes the following:

 

·                     Since Liability Carrier Correctly Denied Coverage on Failure of its Insured to Cooperate, Uninsured Motorist Claim was Directed to Proceed

·                     Credibility Issue for UM Claim Against MVAIC Must be Resolved by Hearing

·                     Carrier's Late Disclaimer is Not Fatal Where Underlying Claim is for "Advertising Injury"

·                     Sexual Molestation Exclusion in E&O Policy Bars Coverage Where No Other Malpractice Claims Asserted

·                     Since Lessee Provided Primary Coverage for Leased Car, Lessor Was Not Required to Do So

·                     Very Difficult to Overturn Arbitration Award

·                     Insured Doesn't Buy Coverage for Consequential Damages, No Recovery for those Damages Available

·                     In Rare Time-Demand Bad Faith Case, Court Orders Discovery of Documents from Other Claim Files Which Bear on Interpretation of Exclusion

·                     MVAIC Claim Tolled by Infancy of Claimant

·                     Failure to Move to Stay UM Arbitration Within 20 Days Deemed Untimely

·                     Failure to Notify Liability Carrier for Three Months Leads to Loss of Coverage and Availability of UM Coverage

·                     What's a "Household?"  Depends on Intent

·                     Insurer Properly Denied Coverage Under "Lead Based Paint Exclusion" by Sending Denial to Insured and Injured Parties' Counsel

·                     Without Claims of Injuries During Advertising, Advertising Coverage Not Available for Claims of Tortious Interference

 

 

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

·                     No Objective Testing, No Summary Judgment

·                     Two-Year Old Medical Reports Too Old to Grant Motion for Summary Judgment

·                     Relying on Plaintiff's Medical Records Sinks Defendant's Summary Judgment Motion

·                     Short and Sweet: Plaintiff's Failure to Raise Triable Issue of Fact Thwarts Appeal

·                     Differing Grounds But Same Result: Defendant's Motion for Summary Judgment Denied

·                     Conflicting Reasons for Cessation of Treatment Crushes Plaintiff's Lawsuit

·                     Order Modified as Plaintiff's Chiropractor's Relies on Objective Proof to Show Triable Issue of Fact

·                     Show Your Work: Docs Must Disclose Tests Conducted to Support Their Conclusions

·                     Showing Plaintiff's Previous Ailments were Asymptomatic Defeats Summary Judgment

·                     Objective Tests Clinch Affirmation of Order Granting Summary Judgment

·                     Limitations in Plaintiff's Movement Must Be Significant to Raise a Triable Issue of Fact

·                     Failure to Address Plaintiff's Claim Foils Defendant's Motion for Summary Judgment

·                     Causally Relating Plaintiff's Disabilities to Accident Defeats Summary Judgment Motion

·                     Quantitative Assessment of Range of Motion Limitations Must Be Objective and Timely

·                     Examination of Plaintiff Must Be Recent To Raise Triable Issue of Fact

·                     High Five! Plaintiff's Failure to Explain Five-Year Gap in Treatment Leads to Order Granting Defendants' Motion for Summary Judgment

 

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]

                       

·                     Severance Granted After Provider Placed Four Different Claims Arising Out Of Four Different Accidents And Denied Based Upon Four Different Peer Reviews Into One Action

·                     Lack Of Sufficient Affidavit Demonstrating Mailing Of Denial Of Claim Precludes Insurer From Arguing Excessive Fees and Fraudulent Billing

·                     Lack of Affidavit From Vendor That Scheduled And Noticed IME Fatal To Opposing Summary Judgment On Issue Of Failure To Attend IME

·                     Claim Denied Where Assignment Accepted By Entity That Did Not Legally Exist At The Time of Assignment

·                     Arbitrator Does Not Buy Applicant's Argument That Claims Subsequent To Denial Did Not Have To Be Submitted To Insurer

·                     Insurers Are Not Required To Accept Electronic Signatures On Assignment Of Benefit Form or NF-3 Form

·                     Plaintiff's Summary Judgment Motion Denied As Premature In Order To Permit Discovery On Insurer's Defense Of Fraudulent Incorporation.

 

OK, enough for now.  Enjoy the issue and we'll see you in a couple of weeks.  Any questions, call.

 

Dan

New Page 2

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

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Audrey A. Seeley
Vivian Perry Roché

Steven E. Peiper

Fire, First-Party and Subrogation Team
Andrea Schillaci, Team Leader
[email protected]

Jody E. Briandi
Philip M. Gulisano

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Vivian Perry Roché
Mark Starosielec

APPELLATE TEAM
Dan D. Kohane
Scott M. Duquin

2/8/07              In the Matter of General Assurance Company v. Garcia
Appellate Division, First Department
Since Liability Carrier Correctly Denied Coverage on Failure of its Insured to Cooperate, Uninsured Motorist Claim was Directed to Proceed
This was an application to stay an Uninsured Motorist claim.  State Farm claimed that it had a right to deny coverage to the offending motorist, its insured, because he did not cooperate with the company in the investigation or defense of the claim.   When the UM claim was filed against General Assurance, it challenged State Farm’s disclaimer.  The Court found that State Farm adequately established that its insured failed to cooperate and, as a result, the offending motorist’s car was indeed uninsured.  Accordingly, the application to stay the UM claim was denied and General Assurance was directed to proceed to arbitration.  Court cites to the Thrasher decision from the Court of Appeals on the subject of cooperation.

 

Editor’s Note:  It is worthwhile to review the three point Thrasher test which sets for the standard for establishing an insured’s failure to cooperate.  The courts have held that the burden of proof is on the carrier and it is a “heavy one indeed.”  Remember the test when considering a “lack of cooperation” position.

 

The insurer must demonstrate that:

 

·  It acted diligently in seeking to bring about the insured's co-operation, and

·   That the efforts employed by the insurer were reasonably calculated to obtain the insurer's co-operation and

·  The attitude of the insured, after his co-operation was sought, was one of "willful and avowed obstruction."

Thrasher v. United States Liability Ins. Co., 19 N.Y.2d 159, 168-169 (N.Y. 1967)

 

 

 

 

2/8/07              In re Tulia Caceres v. MVAIC

Appellate Division, First Department

Credibility Issue for UM Claim Against MVAIC Must be Resolved by Hearing

There was a question as to whether the petitioner had complied with the requirements to file an accident report with the Motor Vehicle Accident Indemnification Corporation (MVAIC) in a timely manner.  Since that issue revolved around the credibility of the witness, the lower court should have conduct a fact hearing to resolve that issue, rather than deciding the matter on the papers submitted.

 

2/6/07              Only Natural, Inc. v. Realm National Insurance Company

Appellate Division, Second Department

Carrier’s Late Disclaimer is Not Fatal Where Underlying Claim is for “Advertising Injury”

Insureds sought reimbursement of defense costs in underlying lawsuit involving alleged advertising injury.  Policies (there were two covering consecutive years) required that notice be given of occurrence or offense “as soon as was practicable” and give notice of lawsuit commenced “immediately.”

 

In October 2001, plaintiff was sued and in November of the same year, an order was entered granting a default judgment against the insured for not appearing.  The lawsuit was eventually settled without the insured paying any money.

 

Notice was finally given by the insured to its insurance broker in December 2001 and the broker notified the insurer on January 2, 2002.  The next day, January 3, Realm indicated that it might deny coverage based on late notice of the occurrence and it appeared that the plaintiff had failed and the occurrence might not be covered under the policy. By letter dated February 6, 2002, Realm disclaimed coverage solely on the ground that the plaintiff failed to give it timely notice of the underlying action.

 

Scottsdale received notice on January 8, 2002 by telephone and denied coverage on February 15, 2002 on the ground that the claim did not fall into the policy's definition of "advertising injury." By letter dated January 17, 2003, a year later, Scottsdale reiterated its disclaimer of coverage based upon the grounds set forth in its letter of February 15, 2002 and asserted additional grounds for disclaiming including, inter alia, that the plaintiff "breached the written notice . . . provisions in the Scottsdale insurance contract."   Carriers win on appeal.  Late disclaimers, in the absence of prejudice, are not fatal when the underlying claim is neither one for bodily injury or wrongful death.

 

Editors Note:  The lower court did not understand that New York’s requirement for prompt disclaimer as set forth in Insurance Law 3420(d) does not apply to a claim like this.  The requirement only applies to claims for bodily injury and wrongful death.  In all other cases, late disclaimers are only invalid if there in a showing of prejudice on the part of the insured.  Both carriers were entitled to summary judgment.  The insured’s notice was late, there was no excuse offered for the delay and the disclaimers were therefore appropriate

 

2/6/07              Physicians' Reciprocal Insurers v Giugliano

Appellate Division, Second Department

Sexual Molestation Exclusion in E&O Policy Bars Coverage Where No Other Malpractice Claims Asserted
Underlying plaintiff sued the doctor, alleging that he engaged in sexual relations with her while treating her for depression.  She amended the complaint to alleging as a first cause of action that he acted negligently by engaging in sexual contact with her while he was treating her for depression. As a second cause of action, she alleged that the presence of aggravating factors rendered Dr. Giugliano's actions reckless. The insurance policies issued by PRI to Dr. Giugliano clearly exclude "coverage for any claim that results from sexual intimacy, sexual molestation, sexual harassment, sexual exploitation, or sexual assault, as well as willful, fraudulent, or malicious civil or criminal acts, and claims of false imprisonment."  The appellate court held that since there were not other claims of medical malpractice alleged, the insurer demonstrated that these claims fell within the exclusion and the doctor was not entitled to a defense.  The court distinguished this complaint from one where a similar exclusion was in the policy but other claims of professional negligence were interposed.

 

2/6/07              DePascale v. Wolkoff, et al
Appellate Division, Second Department

Since Lessee Provided Primary Coverage for Leased Car, Lessor Was Not Required to Do So

Leasing cases are always interesting.  Here, the lessee  of the car purchased a policy of insurance from Phoenix Insurance Company and required by statute.  The lease agreement required the lessee to maintain primary coverage for the car and name the lessor, Chase Manhattan Automotive Finance Corp (Chase) as an additional insured under the contract. It did that as well.  The policy that Chase purchased for itself was an excess policy over the primary coverage provided by the lessee through Phoenix. The court holds that the lessor was not required to maintain primary insurance coverage for the subject vehicle, since under the circumstances, the lessor's policy of insurance provides "the assurance that a party injured by the negligent operation of a motor vehicle has recourse to a financially responsible defendant" for the $25,000 minimum amount as mandated by statute.

 

2/2/07              American Manufacturers Mutual Ins. Co. v. Utica First Ins. Co.

Appellate Division, Fourth Department
Very Difficult to Overturn Arbitration Award
In an attempt to overturn an intercompany arbitration award, carrier failed to meet the “heavy burden” of establishing that the award violates strong public policy, is totally irrational or exceeds the power of the panel.  Without, the courts will not vacate an arbitration award.

 

2/2/07              Bi-Economy Market, Inc. v. Harleysville Insurance Company

Appellate Division, Fourth Department
Insured Doesn’t Buy Coverage for Consequential Damages, No Recovery for those Damages Available
The claim against the carrier sought consequential damages. Here, the insurance policy expressly excludes coverage for consequential losses, and thus it cannot be said that such damages were contemplated by the parties when the contract was formed.

 

2/1/07              Diamond State Ins. Co., as subrogee of Gentry Apts. v. Utica First Ins. Co.
Appellate Division, First Department
In Rare Time-Demand Bad Faith Case, Court Orders Discovery of Documents from Other Claim Files Which Bear on Interpretation of Exclusion
Diamond State moved to compel disclosure of all materials in defendant’s claim file which (a) were created after the carrier denied coverage, and (b) were created before the expiration of a 30-day settlement period, with the exception of privileged communication between Utica and its attorneys.  Diamond State also sought to compel production of documents which relate to any interpretation of a “roofing exclusion” in connection with other claims against the defendants insureds which pre-date the expiration of the settlement period.

This was a subrogation action arising from a fire on the roof of premises owned by Gentry, Diamond’s insured.  Diamond alleged that Utica’s insured (LaPioggia) was using a torch to seal a roof leak when the fire broke out.  Utica denied disclaimed coverage for La Pioggia, relying on the roofing operating exclusion endorsement of its insurance policy. Diamond paid Gentry the loss and commenced an action as Gentry's subrogee against La Pioggia in an underlying action. Diamond obtained a default judgment against La Pioggia in the underlying action and gave Utica 30 days to tender its policy. After Utica failed to respond, Diamond commenced the instant action, alleging, inter alia, that Utica, in bad faith, refused to tender its policy.

Diamond alleges that Utica acted in bad faith when it disclaimed coverage. The Court holds that disclosure should have been granted with respect to Utica's other insureds' claims involving the same policy exclusion, since Utica's prior interpretation of that exclusion directly reflects on whether its proffered interpretation and its refusal to settle in this case were in bad faith. An insurer may not use attorney-client, litigation or work product privileges to shield it from disclosing relevant information in an action predicated on bad faith.

Editor’s Note: Not taking a position (because I don’t have one) on the disclaimer, and even assuming for the purposes of discussion that it was wrongful, I cannot understand why one carrier would seek to establish bad faith on the part of another – and perhaps expand the law in the area -- even in the posture of a subrogation matter.

2/1/07              Steele v. Motor Vehicle Accident Indemnification Corporation
Appellate Division, First Department

MVAIC Claim Tolled by Infancy of Claimant
Court holds that claim against Motor Vehicle Accident Indemnification Corporation is tolled for period of time of claimant’s infancy (until age 18) and a claim made within three years thereafter is timely.

 

1/30/07            In the Matter of United Services Automobile Association Property and Casualty Insurance Company v. DeRosa

Appellate Division, Second Department
Failure to Move to Stay UM Arbitration Within 20 Days Deemed Untimely
Here we go again.  Remember the 20 day rule.  The respondents' demands for arbitration of their claims for uninsured/underinsured motorist benefits were not served in a manner intended to conceal their nature or to precipitate a default. Accordingly, since the appellant otherwise failed to seek a stay of arbitration within the relevant 20-day period, its petition was properly denied as untimely.

 

1/30/07            Wingo v. American Transit Insurance Company

Appellate Division, Second Department

Failure to Notify Liability Carrier for Three Months Leads to Loss of Coverage and Availability of UM Coverage

Wingo and Prather were passengers in a car involved in a 3/13/04 accident.  A month later, their lawyer wrote a letter to American Transit (American), the other driver’s carrier, seeking coverage verification and Prather applied for no-fault benefits with American in 6/04.  The two sued Rehman, the other driver involved in the accident in December 2004.  American didn’t learn of the lawsuit until it received a copy of the motion for a default judgment served by the attorney for Wingo and Prather on March 23, 2005.  American Transit was not provided with a copy of the suit papers pursuant to policy provisions requiring immediate forwarding of such papers. Thus, the written disclaimer on this ground sent by American Transit on April 7, 2005, to its insured, Rehman, copies of which were sent to Rehman's broker and the attorney for Wingo and Prather, was appropriate .Accordingly, the Rehman vehicle was uninsured for the subject accident, and the petition by Geico Co. for a permanent stay of the arbitration demanded by Wingo and Prather should have been denied and the proceeding dismissed.

 

 

1/30/07            Auerbach  v. Otsego Mutual Fire Insurance Co.

Appellate Division, Second Department

What’s a “Household?”  Depends on Intent
The defendant issued a fire insurance policy to Recep Akgun and Angelina Akgun for a house in Huntington, New York. The plaintiffs, who are the Akguns' son-in-law and daughter, resided rent-free in the home, while the named insureds, the Akguns, lived in Florida at the time of the loss at issue herein. However, the Akguns had their own bedroom at the house, kept items of personalty throughout the house, received mail at that address, were free to stay at the house whenever they pleased, and in fact stayed at the house at various times for days, weeks, and even months at a time. After the house was involved in a fire, the plaintiffs sought to recover under the policy for their personalty and their additional living expenses. The defendant denied coverage, asserting that the plaintiffs were not insureds under the policy because the insured premises were not the Akguns' household under the policy and therefore not insured. Trial will determine “intent.” Additionally, the defendant was not entitled to insist upon strict adherence to the terms of its policy relative to notice of the claim after it clearly repudiated liability on the claim by sending a letter disclaiming coverage.

 

1/30/07            3405 Putnam Realty Corp. v. Insurance Corporation of New York

Appellate Division, First Department
Insurer Properly Denied Coverage Under “Lead Based Paint Exclusion” by Sending Denial to Insured and Injured Parties’ Counsel
Kelly and Ortiz (the “injured parties”) are plaintiffs in an action against plaintiff 3405 Putnam Realty (Putnam) for injuries allegedly arising due to ingestion of lead paint. Putnam brought the instant declaratory judgment action to have its insurer defend and indemnify it under the insurance policy it had issued. The insurer contends that it disclaimed coverage in a timely fashion, sending notice both to plaintiff herein and to Kelly and Ortiz in the underlying action. Only Kelly and Ortiz appeal.

 

The insurer properly disclaimed under the facts of this case, which included its notification to all interested parties upon receipt of process. Moreover, while the disclaimer, a copy of which was forwarded to Kelly and Ortiz's attorney, stated that the policy was no longer in force and effect, the insurer included language in that disclaimer specifically stating that "In the event this loss was within the policy effective dates, there would be no coverage for this loss" under its Lead Based Paint Exclusion

 

Editors Note:  Attaboy Jeff.  We’re always delighted when one of our subscribers and regular correspondents does well.

 

1/30/07            JMZ USA, Inc. v. Lumbermens Mutual Casualty Company

Appellate Division, First Department
Without Claims of Injuries During Advertising, Advertising Coverage Not Available for Claims of Tortious Interference
Plaintiffs seek a declaration of entitlement to a defense from their insurers in an underlying action brought by the owners of several Vertigo brand clothing franchises for damages allegedly resulting from plaintiffs' sale of the brand to discount retail establishments. The Vertigo franchise owners' complaint, which asserts causes of action for tortious interference with contract, tortious interference with prospective business advantage, and violation of Florida's deceptive and unfair trade practices statute, claims that marketing of the brand focuses on its exclusivity, mystique and excitement, and that consequently Vertigo apparel is sold in only a limited number of Vertigo retail locations, that now discount shops sell the brand and as a result, the Vertigo franchise owners have suffered both the loss of customers and the destruction of the goodwill and reputation for high quality that they spent considerable time, money and resources developing.

No coverage is available under the “personal injury” portion of the policy.  The claim is not one of  oral or written publication of disparaging material

As to "advertising injury," the Federal umbrella policies contain an endorsement that excludes advertising injury from coverage. Contrary to plaintiffs' contention, this endorsement was unambiguous and must be enforced as written and since plaintiffs made no showing that they were prejudiced by Federal's delay in disclaiming coverage on that basis, Federal was not estopped to enforce the exclusionary endorsement. Coverage was unavailable to plaintiffs under the advertising injury provisions of the primary Federal policies because the Vertigo owners' complaint does not allege that plaintiffs engaged in any advertising activities.

Editors Note:  Note the discussion about the late disclaimer and “lack of prejudice.”  Readers will remember that the only reason the court discusses “prejudice” with respect to a late disclaimer is because this is not a claim for bodily injury or wrongful death.  Under Section 34230, in injury and death cases, a failure to disclaim promptly could be fatal to a denial based on an exclusion or breach of policy condition.  However,  cases such as this, that do not involve injury or death are not governed by the statute and, instead, by common law where prejudice still counts.

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

 

2/6/07              Larrieut v Gutterman

Appellate Division, Second Department

No Objective Testing, No Summary Judgment

Defendants failed to meet their prima facie burden for a number of reasons. While the affirmed medical report of the defendants’ examining orthopedist set forth range of motion findings with respect to plaintiff’s cervical and lumbar spine, his right shoulder and right knee; the examining orthopedist failed to compare those findings to the normal range of motion. Further, the defendants’ examining neurologist, in discussing range of motion testing performed on the plaintiff in his affirmed report, merely stated that such testing revealed “full range of motion” of the cervical spine, both shoulders, as well as the lower torso. However, he failed to set forth the objective testing he performed in order to reach the conclusion that the plaintiff did not sustain any limitations in range of motion in these areas as a result of the subject accident.

 

2/6/07              Guevara v Baginski

Appellate Division, Second Department

Two-Year Old Medical Reports Too Old to Grant Motion for Summary Judgment

While defendants established good cause for their delay in making motion for summary judgment, they still failed to make a prima facie showing that plaintiff did not sustain a serious injury. The medical reports proffered in support of the defendants’ motion were one and two years old at the time the defendants moved for summary judgment. In the interim, the plaintiff had further medical treatment that was not addressed in the defendants’ reports. Moreover, the conclusions made therein were not supported by objective medical findings.

 

2/6/07              Eybers v. Silverman

Appellate Division, Second Department

Relying on Plaintiff’s Medical Records Sinks Defendant’s Summary Judgment Motion

When it is all sorted out, defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In support, defendants relied upon, inter alia, plaintiff’s medical reports and records. One of these noted the existence of limitations in the range of motion of her cervical spine without sufficient quantification or qualification to establish that the limitation of motion was not significant. Moreover, the affirmed medical report of the defendants’ examining neurologist noted that she had “full” range of motion in her neck, yet he failed to state what objective testing he used to arrive at his conclusion that she did not have any limitations. Since the defendants failed to meet their prima facie burden, the Court did not consider the sufficiency of the papers submitted in opposition to the defendants’ motion.

2/6/07              Ali v. Brooks

Appellate Division, Second Department

Short and Sweet: Plaintiff’s Failure to Raise Triable Issue of Fact Thwarts Appeal

Appellate Division affirmed lower court’s order granting defendant’s motion for summary judgment. Defendant made a prima facie showing that plaintiff did not sustain a serious injury. The plaintiff failed to raise a triable issue of fact either by his submissions in opposition to the defendant’s motion or by his submissions on a subsequent motion for leave to renew.

 

 

2/6/07              McDonald v. Pookie Hacking Corp.

Appellate Division, Second Department

Differing Grounds But Same Result: Defendant’s Motion for Summary Judgment Denied

Appellate Division affirmed lower court’s order denying defendants’ motion for summary judgment. Here, defendants failed to establish 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. In his affirmed medical report, the defendants’ examining orthopedist conceded the existence of limitations in the plaintiff’s lumbar spine range of motion based on his examination of the plaintiff as well as the existence of a causal relationship between the subject accident and the plaintiff's reported symptomatology. As such, court need not even consider whether plaintiff raised a triable issue of fact.

 

2/6/07              Gonzalez v. A.V. Managing, Inc.

Appellate Division, First Department

Conflicting Reasons for Cessation of Treatment Crushes Plaintiff’s Lawsuit

Differing explanations for why plaintiff stopped medical treatment leads to Appellate Division’s reversal of lower court’s order denying summary judgment. At his deposition, plaintiff stated that he stopped treatment because “doctors told me they couldn't do no further.” Seven months later, in his affidavit he stated he “stopped receiving medical treatment because the pain became permanent and the therapy was not helping anymore.” In view, however, of statements to the contrary by his physician and in his appellate argument that further treatment was indicated, plaintiff’s explanation for the cessation of treatment is legally insufficient. His deposition statement that one of the reasons he terminated treatment was that “insurance wouldn't cover it any further” is in conflict with the other explanations plaintiff offered for the cessation of treatment.

 

2/2/07              Moore v Gawel

Appellate Division, Fourth Department

Order Modified as Plaintiff’s Chiropractor’s Relies on Objective Proof to Show Triable Issue of Fact

Appellate Division modified order denying the motion in part and reinstating the complaint, as amplified by the bill of particulars, with respect to the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury. Defendants were victorious in eliminating the 90/180 category by showing plaintiff sustained no injury in the accident, along with evidence establishing that he missed 30 days of work during the first 180 days following the accident and that plaintiff’s medical providers placed no restrictions on plaintiff’s activities during that 180-day period.

 

While defendants were able to meet their burden on the permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system categories, plaintiff was able to raise a triable issue of fact. He submitted the expert opinion of his treating chiropractor who relied upon objective proof of plaintiff’s injury, provided quantifications of plaintiff's loss of range of motion and qualitative assessments of plaintiff’s condition. In conclusion, chiropractor stated “plaintiff's injury was significant, permanent, and causally related to the accident.”

 

2/2/07              Burke v Carney
Appellate Division, Fourth Department

Show Your Work: Docs Must Disclose Tests Conducted to Support Their Conclusions

Lower court’s order which granted defendants’ motion for summary judgment is affirmed by Appellate Division. Here, plaintiff was involved in two car accidents approximately five months apart. Defendants met their prima facie showing. In response, plaintiff failed to raise an issue of fact to defeat defendants’ motion. While one of plaintiff’s physicians concluded that she had a disc herniation, that physician failed to establish the extent or degree of the alleged physical limitations resulting from the disc injury. Further, that physician’s opinion was based largely on plaintiff’s subjective complaints of pain and he did not set forth the tests he conducted or their results to support his conclusions concerning the restrictions and limitations resulting from plaintiff's injuries.

 

2/2/07              Mack v Pullum

Appellate Division, Fourth Department

Showing Plaintiff’s Previous Ailments were Asymptomatic Defeats Summary Judgment

Appellate Division affirmed lower court’s order granting defendants’ motion for summary judgment in part and denying defendants’ motion for summary judgment in part. Here, the Court dismissed the complaint with respect to the significant disfigurement, fracture and permanent loss of use categories of serious injury. The Court also conclude that the lower court properly denied those parts of the respective motions with respect to the permanent consequential limitation of use, significant limitation of use and 90/180 categories of serious injury. Although defendants met their initial burden with respect to those categories, plaintiff raised issues of fact. Plaintiff submitted the affirmation and attached medical reports and records of a physician who concluded that the degenerative changes to plaintiff’s spine before the accident were asymptomatic. That physician established the extent or degree of the alleged physical limitations resulting from those conditions that plaintiff contends were aggravated as a direct result of the accident. Contrary to defendants’ contention, the opinion of that physician was not based solely on plaintiff’s subjective complaints of pain and he set forth the tests he conducted and the results of those tests to support his conclusions concerning the restrictions and limitations resulting from plaintiff’s injuries.

 

2/1/07              Zito v. Lezi

Appellate Division, First Department

Objective Tests Clinch Affirmation of Order Granting Summary Judgment

Here, defendants met their initial burden of establishing, prima facie, that plaintiff had not suffered serious injury. Defendants submitted the affirmation of an orthopedic surgeon, who, based upon his examination of plaintiff and objective medical tests, concluded that she had not suffered permanent consequential limitation or significant loss or impairment of the function of her neck, back or left knee by reason of the alleged car accident. Plaintiff failed to meet her consequent burden to present evidence showing an objective medical basis for her claim of serious injury.

 

1/30/07            Whitfield-Forbes v Pazmino

Appellate Division, Second Department

Limitations in Plaintiff’s Movement Must Be Significant to Raise a Triable Issue of Fact

Appellate Division affirmed lower court’s order which granted defendants’ motion for summary judgment. Defendants established a prima facie showing that plaintiff did not sustain a serious injury. In opposition, plaintiff failed to raise a triable issue of fact. The findings in the affirmed medical report of the plaintiff's treating physician were not based on a recent examination. Further, the limitations in the plaintiff’s rotational movement of her cervical spine, as noted in the affirmed medical reports of the plaintiff’s other treating physician were of an insignificant nature. Additionally, the affirmation of the plaintiff’s treating radiologist, which set forth the results of the plaintiff’s cervical spine MRI, did not, alone, raise a triable issue of fact. The mere existence of a herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.


1/30/07          Torres v Performance Auto. Group, Inc.

Appellate Division, Second Department

Failure to Address Plaintiff’s Claim Foils Defendant’s Motion for Summary Judgment

Defendants failed to establish a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendants’ moving papers failed to adequately address the plaintiff’s 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. On the advice of her treating physician, the plaintiff was out of work for five months out of the first six months after the accident. The defendants’ examining orthopedist and neurologist conducted their separate examinations of the plaintiff nearly 1½ years after the accident. Neither expert related their findings to this category of serious injury for the period of time immediately following the accident.

 

1/30/07          Gonzalez v Baik
Appellate Division, Second Department

Causally Relating Plaintiff’s Disabilities to Accident Defeats Summary Judgment Motion

Lower court’s order is affirmed by Appellate Division. Here, defendants established prima facie case that plaintiff did not sustain a serious injury. In response, plaintiff submitted treating physician’s affirmation which quantified loss of range of motion based upon a recent examination. Further, physician concluded that plaintiff’s functional disabilities and limitations are causally related to the car accident, raising a triable issue of fact precluding summary judgment.

 

1/30/07            Atkinson v. Oliver

Appellate Division, First Department

Quantitative Assessment of Range of Motion Limitations Must Be Objective and Timely

Appellate Division reversed lower court’s order which denied defendant’s motion for summary judgment. The Court held that defendant presented a prima facie case that plaintiff did not suffer a serious injury. In opposition, plaintiff submitted evidence of various injuries and pain in the cervical spine, lumbar spine, left shoulder, leg and lower back that allegedly caused her to be unable to resume employment for 104 days. However, she failed to submit the requisite contemporaneous quantitative assessment of range-of-motion limitations based on objective testing. The quantitative range-of-motion assessment she did submit was made two years after the accident, apparently for purposes of litigation, by a physician who examined her only on that one occasion. Even plaintiff’s own treating physician never made such an assessment and diagnosed her as merely suffering soft tissue injuries.

 

1/23/07            Albano v. Onolfo

Appellate Division, Second Department

Examination of Plaintiff Must Be Recent To Raise Triable Issue of Fact

Defendants appeal lower court’s order which denied their motion for summary judgment. Appellate Division reversed order, stating defendants met their prima facie entitlement to judgment as a matter of law. In response, plaintiff failed to raise a triable issue of fact. Plaintiff’s treating orthopedist and his accompanying reports were not based on a recent examination of the plaintiff. Additionally, plaintiff failed to adequately explain a two-year long gap in her treatment. Further, plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the accident.

 

1/23/07            Cervino v. Gladysz-Steliga

Appellate Division, Second Department

High Five! Plaintiff’s Failure to Explain Five-Year Gap in Treatment Leads to Order Granting Defendants’ Motion for Summary Judgment

The Court held the defendants established their prima facie entitlement to judgment as a matter of law. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted separate affidavits of her treating chiropractor which failed to adequately explain the plaintiff’s five-year gap in treatment. Additionally, the chiropractor’s conclusion that the injuries and limitations in the range of motion of the spine of the plaintiff were caused by the subject accident was speculative because he failed to address or even acknowledge the fact that she had previously injured her neck and back in a prior car accident.

 

 

Audrey’s Angle on No-Fault

Audrey Seeley

[email protected]

 

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. 

 

1/31/07            Andrew Carothers, MD, PC a/a/o Sulman Samdani et. al. v. GEICO

Indemnity Co.

2d Dept. App. Term, 2007 NY Slip Op 27034                     

Severance Granted After Provider Placed Four Different Claims Arising Out Of Four Different Accidents And Denied Based Upon Four Different Peer Reviews Into One Action.

 

Here is the Angle:  You should review any complaint to ensure that a provider is not improperly attempting to bundle multiple different claims into one law suit.

 

The Analysis:  The Defendant, insurer, successfully moved to sever what were really five causes of action arising out of the assignee’s five separate patients involved in five separate motor vehicle accidents.  The Plaintiff opposed the motion arguing that four of the claims were denied for the same reason – lack of medical necessity.  The fifth claim resolved during the litigation.  While the four claims were denied for lack of medical necessity the basis for the denial was upon four different peer reviews conducted by four different physicians.  The Court granted Defendant’s motion holding that a single trial involving different sets of facts and four different physicians would be too confusing.

 

1/31/07            Vista Surgical Supplies, Inc. a/a/o Pascuala Garcia v. State Farm Mut. Ins. Co.

2d Dept. App. Term, 2007 NY Slip Op 50163(U)

Lack Of Sufficient Affidavit Demonstrating Mailing Of Denial Of Claim Precludes Insurer From Arguing Excessive Fees and Fraudulent Billing.

 

Here is the Angle:  Insurers MUST make sure that the affidavit submitted regarding issuance of a timely denial is from a person with personal knowledge that the denial forms were actually mailed OR the standard office procedure for mailing.  This indicates that the person who signed the denial or physically mailed the denial need not provide the affidavit to establish it was mailed.

 

Interestingly the insurer was precluded from arguing that the fees were excessive.  I read this as fees in excess of the Workers’ Compensation Fee Schedule.  This preclusion is quite a penalty to the insurer in light of the fact that the amount that a provider can charge for medical treatment rendered in a no-fault claim is specifically limited to the Workers’ Compensation Fee Schedule.  Moreover, the case relied upon for this authority, Careplus Med. Supply Inc. v. Statewide Ins. Co., 11 Misc3d 29 (2d Dept. App. Term 2005), does not even address this issue! It does address the issue of the defense of fraudulent billing and excessive MEDICAL TREATMENT. 

 

The Analysis:  The Defendant’s, insurer, position that it timely denied Plaintiff’s claim for no-fault benefits was rejected based upon an insufficient affidavit from the insurer on mailing procedures for denial of claims.  Here, the insurer failed to submit an affidavit in opposition to Plaintiff’s summary judgment motion that from a person with personal knowledge:

 

either stating that the denial of claim forms were mailed or setting forth ‘a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing.’

 

citing, S&M Supply Inc. v. Progressive Ins. Co., 8 Misc3d 138[A] (2d Dept. App. Term).  The Court held that the insurer did not issue a timely denial.  The result was preclusion of arguing the defenses of not only lack of medical necessity but also fraudulent billing and excessive fees.

 

Yet, the insurer was not precluded from arguing fraud.  The Court held that the insurer’s investigator’s accident did raise an issue of fact precluding summary judgment as to whether the alleged injuries arose of an insured incident.

 

1/31/07            Vista Surgical Supplies, Inc. a/a/o Pascuala Garcia v. New York Cent. Ins. Co.

2d Dept. App. Term, 2007 NY Slip Op 50165(U)

Lack of Affidavit From Vendor That Scheduled And Noticed IME Fatal To Opposing Summary Judgment On Issue Of Failure To Attend IME.

 

Here is the Angle:  The issue here was whether the eligible injured person failed to appear for a scheduled IME.  The insurer used a third-party vendor to schedule and notice its IMEs.  The Court rejected the insurer’s adjuster’s affidavit as to the mailing of the IME notice and failure to appear as only the third-party vendor could establish that the notice was mailed and the eligible injured person failed to appear.

 

The Analysis:  In opposition to the Plaintiff’s summary judgment motion, the Defendant, insurer, argued that the eligible injured person failed to appear for a scheduled independent medical examination (“IME”).  The Defendant arranged for its IMEs to be scheduled and noticed through a third party, Allegiance Health.  The Court rejected the insurer’s adjuster’s affidavit regarding the scheduling and issuance of the IME notice since the adjuster was not the individual who scheduled or noticed the IME.  Therefore, the Plaintiff’s motion was granted.

 

1/19/07            In the Matter of the Arbitration between the Applicant and Respondent

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

Claim Denied Where Assignment Accepted By Entity That Did Not Legally Exist At The Time of Assignment.

 

Here is the Angle:  Arbitrator McCorry denied this claim for reimbursement of electrodiagnostic testing by a chiropractor on the basis that the assignment of benefits taken was from an entity that did not legally exist at the time the assignment was accepted.

 

The Analysis:  The Applicant, chiropractor, sought reimbursement for electrodiagnostic testing conducted on the eligible injured person.  The testing was performed by Scott Syracuse, D.C.  Mr. Syracuse testified that he and his partner formed a limited partnership for the purpose of rendering chiropractic services, one of which was electrodiagnostic testing.  In this case, Mr. Syracuse self-referred the eligible injured person for electrodiagnostic testing.  The eligible injured person provided an assignment of benefits to Buffalo Electrodiagnostics.  Mr. Syracuse conceded at this arbitration that there is no legal entity called Buffalo Electrodiagnostics as the licensing authorities would not give approval for the name’s use.

 

The insurer successfully argued that SNG Chiropractic, Inc. who commenced this arbitration had no standing to pursue this claim as the assignment of benefits ran to Buffalo Electrodiagnostics.  Arbitrator McCorry further stated that based upon the evidence and the testimony that the assignment of benefits should have run to either SNG Chiropractic, Inc. or Mr. Syracuse.  In denying this claim Arbitrator McCorry reasoned:

 

You have sophisticated individuals, who prematurely took an assignment in the name of an entity not yet licensed or permitted to operate under an assumed name.  I am also troubled by the self referral aspect of this questionable testing.

 

1/26/07            In the Matter of the Arbitration between the Applicant and Respondent

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

Arbitrator Does Not Buy Applicant’s Argument That Claims Subsequent To Denial Did Not Have To Be Submitted To Insurer.

 

Here is the Angle:  Arbitrator McCorry provides a thoughtful and well reasoned discussion as to the continuing requirement for an Applicant to submit medical claims to an insurer even after a denial of the claim was issued.

 

The Analysis:  Applicant sought reimbursement of various medical expenses that were admittedly submitted to the insurer for the first time as part of the arbitration demand.  When challenged on timely submission of a claim, the Applicant argued that “the law on this issue is crystal clear.”  The Applicant relied upon State Farm v. Domotor, 266 AD2d 219 and King v. State Farm, 218 AD2d 863 (3d Dept. 1995) for the proposition that once an insurer issues a denial of claim the claimant is excused from further compliance with the policy’s condition precedent to coverage regarding time limitations for submitting medical proofs of loss.

 

Arbitrator McCorry indicated that since this accident occurred before the September 2, 2004, Opinion Letter by the Office of General Counsel of the Insurance Department and the New Regulations that the aforementioned cases could be binding.  However, Arbitrator McCorry declined to impose such a requirement and provided the following well reasoned discussion as to why the claim was denied:

 

…I don’t believe that it excuses a claimant or the health provider from establishing a prima facie case of entitlement to payment of no-fault benefits upon submission of a proper claim form setting forth the fact and the amount of the expenses incurred.  It seems unreasonable to argue that the claim is overdue, if in fact it was never submitted.

 

I might add that I do not consider the filing of a Demand for Arbitration of previously un-submitted claims to be the equivalent submission of a ‘proper claim form’ requiring a no-fault carrier to pay or deny within 30 days.  There could be issues of ‘standing’, statutes of limitation and of appropriate fee schedule rates, that the insurer could still raise if a proper proof of claim was submitted.  The fact that I as the Arbitrator on the earlier claims found that there was medical necessity for the treatment in dispute, does not mean that issue could no longer be raised.  In point of fact the Applicant in this proceeding sought reimbursement for drugs, such as lipitor, which common sense tells me had nothing to do with an accident.  Does the fact that I previously found in favor of the Applicant mean the Respondent can no longer raise defenses to subsequent claims?  I think not.  In order to be able to raise defenses, due process requires that you be apprised of what those claims were, prior to the filing of the Demand for Arbitration.

 

1/16/07            DWP Pain Free Med. P.C., Edison Alcantara v. Progressive Northeastern Ins. Co.,

Suffolk Cty., 3d Dist., 2006 NY Slip Op 26531                   

Insurers Are Not Required To Accept Electronic Signatures On Assignment Of Benefit Form or NF-3 Form.

 

Here is the Angle:  An insurer is not required to accept an electronic signature or an electronic document as an original on an assignment of benefits form or NF-3 form in spite of the state and federal laws on electronic signature and documents.  If the insurer is going to delay the claim based upon this then it is highly recommended that the insurer clearly advise the provider in its request for additional verification that it does not accept electronic signatures or electronic documents as originals.

 

The Analysis:  Defendant moved to dismiss Plaintiff’s Complaint as its claim was premature as no claim for no-fault benefits was overdue.  The interesting issue in the case was whether the Plaintiff’s production of an electronic signature on an assignment of benefits form and NF-3 claim form in response to the Defendant’s verification request was proper thereby triggering the Defendant to either pay or deny the claim within 30 days.

 

Initially, it is noted that the Defendant issued timely verification and additional verification requests under the Insurance Regulations.  The Plaintiff submitted a claim for medical services on August 11, 2005.  On August 22, 2005, the Defendant requested verification of inter alia, an Assignment of Benefits (“AOB”) and NF-3.  The Plaintiff returned the AOB and NF-3 to Defendant which sparked a request for additional verification.  The Defendant in its request stated that the Plaintiff was required under the Insurance Regulations to submit a properly executed AOB or authorization to pay in order to receive direct payment from the Defendant. 

 

The AOB submitted was not properly executed as it was not signed by the patient and the provider signed the AOB with an electronic signature, which the Defendant advised it does not accept.

 

The NF-3 submitted was also not properly executed because not all boxes were filled in.  Apparently, the NF-3 submitted indicated that the patient elected for authorization to pay as well as provided an assignment of benefits which is not permitted.  Furthermore, the Defendant advised it required the physician’s original signature and would not accept an electronic or signature stamp.

 

The Defendant issued a timely follow up verification request when no response was received and it was unrefuted that the Plaintiff had not responded to the Defendant’s verification requests.

 

The Defendant argued in support of its motion to dismiss that it is not required to accept electronic or stamped signatures but has the right to verify the signatures of the provider and patient.  In support of its argument, the Defendant submitted an October 25, 2006, opinion from the General Counsel’s Office of the New York State Insurance Department which opined that the New York State Electronic Signatures and Records Act (“ESRA”) and the Federal Electronic Signatures in Global and National Commerce Act (“E-Sign”) do not require an insurer to accept either electronic signature or electronic records with No-Fault insurance claim forms.  Yet, a digitally reproduced AOB can serve as an original document for purposes of verification by an insurer under 11 NYCRR §65-3.11(c) provided it is accurate and accessible as required by E-Sign §7001(d)(1) AND the insurer consents to the use of an electronic record as an original document.  Further, while ESRA and E-Sign do not require an insurer to accept an electronic signature the insurer can chose to accept it.

 

The Court accepted the Defendant’s argument and that it did not accept an electronic signature on an AOB and NF-3 forms.  The Plaintiff’s complaint was dismissed as the claim was premature since the Defendant’s time to either pay or denial the claim had not expired.

 

1/16/07            Midwood Acupuncture, P.C. a/a/o Willaims Bernadette et. al. v. State Farm Mut. Auto. Ins. Co.

NY Sup. App. Term, 2d Dept., 2007 NY Slip Op 50052(U)

Plaintiff’s Summary Judgment Motion Denied As Premature In Order To Permit Discovery On Insurer’s Defense Of Fraudulent Incorporation.

 

Here is the Angle:  The insurer survived a cross-motion for summary judgment on the basis that it had not completed discovery concerning its defense of fraudulent incorporation.  It is noted that the Defendant made a sufficient showing that the issue of operation and control of the corporation and the viability of the defense were real.

 

The Analysis:  The Court reversed the lower court and denied Plaintiff’s cross-motion for summary judgment and granted Defendant’s motion to sever as well as permitted discovery on the issue of fraudulent incorporation.

 

Of great interest in this case was the Court’s discussion on the insurer’s allegation of the provider not being entitled to reimbursement under 11 NYCRR §65-3.16(a)(12) due to fraudulent incorporation.  The Court, citing State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 (2005), pointed out that the lack of entitlement for reimbursement of No-Fault benefits under the regulation pertained not only to fraudulently licensed providers but also to providers who failed to meet the applicable state and local licensing requirements.  Furthermore, this defense in nonwaivable and not subject to the 30-day preclusion rule.

 

In reviewing the Defendant’s opposition papers to Plaintiff’s cross-motion, the Court held that issues were sufficiently raised as to who really operated and controlled Plaintiff.  The Court found that much of the Defendant’s discovery demands that sought information regarding whether the Plaintiff was fraudulently incorporated were material and necessary.  Accordingly, the Plaintiff’s cross-motion for summary judgment was denied as premature pending discovery being completed.

 

 

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.

 

2/01/07            The Prudential Insurance Company of America v. Kamrath
United States Court of Appeals for the Eighth Circuit

Interpleader Action To Resolve Competing Claims to Proceeds Of Life Insurance Policy
Insurer issued life insurance policy designating insured's wife as primary beneficiary. After filing for divorce and prior to his death, insured sought to change beneficiary from him wife, to his children. When a dispute later arose over distribution of policy proceeds, the district court concluded the insured failed to do all within his power to substantially comply with the policy requirements for changing his beneficiary and awarded proceeds to wife. The Eighth Circuit Court of Appeals affirmed, finding insured's action prior to his death did not meet the high standard of substantial compliance required under Missouri and New York law, noting insured had not mailed in a required change of beneficiary form nor sought confirmation from the insurer of the change in beneficiary.

Submitted by: Gregory A. Witke; Bradshaw, Fowler, Proctor, Fairgrave, P.C.

 

2/01/07            Caldwell Freight Lines, Inc. v. Lumbermens Mutual Casualty Co.
Supreme Court of
Mississippi

Action To Recover Damages From Accident Gives Rise To Question Over Coverage Gap Resulting From A Primary Insurer's Insolvency
Insured brought suit under Commercial Catastrophe Liability Policy to recover settlement proceeds paid to injured party after primary liability insurer became insolvent. On appeal, the Mississippi Supreme Court affirmed the trial court's holding that "that in reading the entire policy…the meaning of [the term 'sums actually payable'] is clearly qualified…to preclude any form of 'drop down' coverage from the insurance policy issued by [insolvent insurer]."

Submitted by: Gregory A. Witke; Bradshaw, Fowler, Proctor, Fairgrave, P.C.

 

1/30/07            Seeck v. Geico General Insurance Co.
Supreme Court of Missouri

Coverage Dispute Over Underinsured Motorist Benefits Wherein "Other Insurance" Provision Declared Ambiguous
Plaintiff motorist was severely injured by a negligent motorist. After settling her claims against the negligent driver and his insurer for full coverage under the policy, plaintiff pursued underinsured motorist benefits from her own insurer. Plaintiff's insurer denied coverage under a policy containing an "other insurance" clause expressly stating it provided $50,000 in "excess" coverage over "any other insurance available to the insured" and that it was excess to any "primary" coverage applicable to the occupied vehicle. After analyzing the express terms of the policy, the Court, in reversing trial court's grant of summary judgment in favor of insured, ultimately concluded where an "other insurance" clause appears to provide coverage but other clauses indicate that such coverage is not provided, then the policy is ambiguous and the ambiguity must be resolved in favor of coverage.

Submitted by: Gregory A. Witke; Bradshaw, Fowler, Proctor, Fairgrave, P.C.

 

1/30/2007        Wilson V. Simplot

Supreme Court of Idaho

Affirming Grant Of New Trial On The Ground Of Excessive Damages Appearing To Have Been Awarded Under The Influence Of Passion Or Prejudice
Plaintiff was injured in a collision with Defendant. Defendant admitted liability and the case went to trial on the issue of damages. The jury returned a verdict awarding plaintiff $250,000 in non-economic damages. The trial court granted defendant's motion for new trial on the grounds the non-economic damages were excessive and appeared to have been given under the influence of passion or prejudice and plaintiff appealed. The Supreme Court of Idaho affirmed the grant of a new trial noting the district court's observations that the jury may have been prejudiced against the defendant which was a large corporation and the fact that the district court had made notes to itself that an jury award in excess of $100,000 would warrant a new trial.

Submitted by: Gregory A. Witke; Bradshaw, Fowler, Proctor, Fairgrave, P.C.

 

1/30/07            Ace Systems, Inc. v. St. Paul Fire and Marine Ins. Co.
Court of Appeal of the State of California Second Appellate District, Division Three

Duty To Defend Insured In Action Charging Insured With Invading Privacy and Sending Unsolicited Advertisements To Fax Machines In Violation Of Federal Statute
Involving the question of whether a liability insurer providing coverage for "advertising injury" and "property damage" is required to defend its insured in an action which charged the insured with sending unsolicited advertisements to fax machines in violation of the federal Telephone Consumer Protection Act and with invasion of privacy. The Court held the advertising injury and property damage provisions of the insurance policy did not provide coverage for liability for violations of the federal statute or for invasion of privacy. Consequently, no potential coverage existed and no duty to defend arose.

Submitted by: Gregory A. Witke; Bradshaw, Fowler, Proctor, Fairgrave, P.C

 

 

 

 

CASES IN FULL TEXT

 

 

3405 Putnam Realty Corp. v. Insurance Corporation of New York


David A. Kapelman, New York, for appellants.
Gold, Stewart, Kravatz & Stone, LLP, Westbury (Jeffrey B.
Gold of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 28, 2005, which, to the extent appealed from, granted defendant insurer's cross motion for summary judgment dismissing plaintiff's complaint and denied the cross motion by defendants Kelly and Ortiz for summary judgment to strike defendant insurer's answer to their cross claim, unanimously affirmed, without costs.

Kelly and Ortiz are plaintiffs in an underlying action against plaintiff 3405 Putnam Realty for injuries allegedly arising due to ingestion of lead paint. 3405 Putnam Realty brought the instant declaratory judgment action to have its insurer defend and indemnify it under the insurance policy it had issued. The insurer contends that it disclaimed coverage in a timely fashion, sending notice both to plaintiff herein and to Kelly and Ortiz in the underlying action. Only Kelly and Ortiz appeal.

Kelly and Ortiz would not ordinarily have standing to bring an action for the relief sought in their cross claim (see Lang v Hanover Ins. Co., 3 NY3d 350 [2004]). However, the insured named Kelly and Ortiz, who failed to obtain a judgment in the underlying personal injury action prior to suing the tortfeasor's insurer, as required by Insurance Law § 3420, as party defendants in the action, thereby allowing them to contest the issue of coverage anew in the instant case (see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 471 [2005]).

The insurer properly disclaimed under the facts of this case, which included its notification to all interested parties upon receipt of process. Moreover, while the disclaimer, a copy of which was forwarded to Kelly and Ortiz's attorney, stated that the policy was no longer in force and effect, the insurer included language in that disclaimer specifically stating that "In the event this loss was within the policy effective dates, there would be no coverage for this loss" under its Lead Based Paint Exclusion (cf. Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185 [2000]). Under these circumstances, the disclaimer was valid (see M-Dean Realty Corp. v General Sec. Ins. Co., 6 AD3d 169 [2004]).

We have considered appellants' other contentions and find them without merit.

JMZ USA, Inc. v. Lumbermens Mutual Casualty Company



Thelen Reid & Priest LLP, San Francisco, CA (James A.
Riddle, of the California Bar, admitted pro hac vice, of counsel), for
appellants.
Tressler Soderstrom Maloney & Priess, LLP, New York
(Daneen Fitzpatrick Berres of counsel), for Lumbermens Mutual
Casualty Company, respondent.
Goodman & Jacobs LLP, New York (Judith F. Goodman of
counsel), for Federal Insurance Company, respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 26, 2005, which denied plaintiffs' motion for summary judgment declaring that defendant Lumbermens had a duty to defend them in the underlying action, and granted Lumbermens' cross motion for summary judgment declaring that it had no such duty, unanimously affirmed, with costs. Order, same court and Justice, entered April 10, 2006, which granted defendant Federal's motion for summary judgment declaring that it had no duty to defend plaintiffs in the underlying action, unanimously affirmed, with costs.

Plaintiffs seek a declaration of entitlement to a defense from their insurers in an underlying action brought by the owners of several Vertigo brand clothing franchises for damages allegedly resulting from plaintiffs' sale of the brand to discount retail establishments. The Vertigo franchise owners' complaint, which asserts causes of action for tortious interference with contract, tortious interference with prospective business advantage, and violation of Florida's deceptive and unfair trade practices statute, alleges that the Vertigo brand is associated with sophisticated, haute couture ladies' apparel, that marketing of the brand focuses on its exclusivity, mystique and excitement, and that consequently Vertigo apparel is sold in only a limited number of Vertigo retail locations, specialty boutiques and upscale department stores. The underlying complaint alleges that plaintiffs are widely distributing Vertigo brand apparel to outlet retailers and discount stores in the markets where the Vertigo franchises are located, with full knowledge that these discount outlets will sell the same brand new Vertigo merchandise that is available at the exclusive franchise locations but at significantly lower prices, and that as a result the Vertigo franchise owners have suffered both the loss of customers and the destruction of the goodwill and reputation for high quality that they spent considerable time, money and resources developing.

The insurance policies issued by Lumbermens to plaintiffs obligate it to defend actions seeking damages for "personal injury" as defined in the policies. That definition includes injury arising out of "Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services." Plaintiffs argue that the underlying complaint alleges they disparaged Vertigo merchandise by placing it in stores that sell goods of inferior quality, i.e., that they disparaged the Vertigo brand "by association." However, the motion court properly found that even accepting the allegations of the underlying complaint as true and affording them every favorable inference, that complaint does not allege that the Vertigo franchise owners suffered an injury arising out of any oral or written publication of disparaging material by plaintiffs. Rather than referring to oral or written publication of disparaging material, the complaint attributes the injury to the alleged effect of the presence of plaintiffs' lower-priced goods in the market (see Elite Brands v Pennsylvania Gen. Ins. Co., 2004 US Dist LEXIS 17512, *19, 2004 WL 1945732, *6 [SD NY], affd 164 Fed Appx 60 [2d Cir 2006]).

To the extent the insurance policies issued to plaintiffs by Federal define "personal injury" and "advertising injury" in terms identical or similar to those in which the Lumbermens policies defined "personal injury," plaintiffs' claim against Federal must also fail because the underlying complaint did not allege injury arising out of an oral or written publication. As to "advertising injury," the Federal umbrella policies contain an endorsement that excludes advertising injury from coverage. Contrary to plaintiffs' contention, this endorsement was unambiguous and must be enforced as written (Charnowitz v GEICO, 177 AD2d 320, 321 [1991]), and since plaintiffs made no showing that they were prejudiced by Federal's delay in disclaiming coverage on that basis, Federal was not estopped to enforce the exclusionary endorsement (Fairmont Funding v Utica Mut. Ins. Co., 264 AD2d 581 [1999]). Coverage was unavailable to plaintiffs under the advertising injury provisions of the primary Federal policies because the Vertigo owners' complaint does not allege that plaintiffs engaged in any advertising activities (Meyers & Sons Corp. v Zurich Am. Ins. Group, 74 NY2d 298, 303 [1989]).

 

Auerbach  v. Otsego Mutual Fire Insurance Co.

 

Tell, Cheser & Breitbart, Garden City, N.Y. (Kenneth R. Feit of
counsel), for appellant.
Rappaport, Glass, Greene & Levine, LLP (Alexander J.
Wulwick, New York, N.Y., of counsel), for
respondents.

 

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered January 13, 2006, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant issued a fire insurance policy to Recep Akgun and Angelina Akgun for a house in Huntington, New York. The plaintiffs, who are the Akguns' son-in-law and daughter, resided rent-free in the home, while the named insureds, the Akguns, lived in Florida at the time of the loss at issue herein. However, the Akguns had their own bedroom at the house, kept items of personalty throughout the house, received mail at that address, were free to stay at the house whenever they pleased, and in fact stayed at the house at various times for days, weeks, and even months at a time. After the house was involved in a fire, the plaintiffs sought to recover under the policy for their personalty and their additional living expenses. The defendant denied coverage, asserting that the plaintiffs were not insureds under the policy because the insured premises was not the Akguns' household under the policy. Pursuant to the policy, the plaintiffs were deemed insureds under the policy only if they were residents of the Akguns' "household."

If an insurance policy "is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the [insured] against the [insurer]" (Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44, 49; Ruder & Finn v Seaboard Sur. Co., 71 AD2d 216, affd 52 NY2d 663). The term "household" repeatedly has been characterized as ambiguous or devoid of any fixed meaning (see e.g. Matter of Hartford Ins. Co. of Midwest v Casella, 278 AD2d 417, 418; General Assur. Co. v Schmitt, 265 AD2d 299, 300-301; Schaut v Firemen's Ins. Co. of Newark, 130 AD2d 477, 479). Accordingly, the interpretation of the term requires an inquiry into the intent of the parties (see Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254; Matter of Hartford Ins. Co. of Midwest v Casella, supra; see also General Assur. Co. v Schmitt, supra) and must reflect "the reasonable expectation and purpose of the ordinary business man when making an insurance contract" (Schaut v Firemen's Ins. Co. of Newark, supra at 478-479 [internal quotation marks and citation omitted]; see Miller v Continental Ins. Co., 40 NY2d 675, 676; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924), and the circumstances of the particular case must be considered (see Schaut v Fireman's Ins. Co. of Newark, supra at 479).

Here, there is a triable issue of fact as to whether the home in question was the Akguns' household for the purpose of the insurance policy (see Schaut v Firemen's Ins. Co. of Newark, supra at 479; Wrigley v Potomac Ins. Co., 122 AD2d 361; Matter of Prudential Prop. & Cas. Ins. Co. [Galioto]; 266 AD2d 926; Walburn v State Farm Fire & Cas. Co., 215 AD2d 837, 838). Additionally, the defendant was not entitled to insist upon strict adherence to the terms of its policy relative to notice of the claim after it clearly repudiated liability on the claim by sending a letter disclaiming coverage (see State Farm Ins. Co. v Domotor, 266 AD2d 219, 220). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment.
SPOLZINO, J.P., RITTER, LUNN and ANGIOLILLO, JJ., concur.

Wingo v. American Transit Insurance Company

 

Robinson & Cole, LLP, New York, N.Y. (Katherine C. Glynn,
Joseph L. Clasen, and Marjorie Bornes of counsel), for appellant.
Morris Duffy Alonso & Faley, New York, N.Y. (Yolanda L.
Ayala, Andrea M. Alonso, and Anna
J. Ervolina of counsel), for petitioner-
respondent.
Bruce S. Resnick, P.C. (Pollack, Pollack, Isaac & De Cicco,
New York, N.Y. [Brian J. Isaac and
Kenneth J. Gorman] of counsel), for
respondents-respondents.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, American Transit Insurance Company appeals from an order of the Supreme Court, Kings County (Archer, J.H.O.), dated October 27, 2005, which, after a hearing, determined that the disclaimer by American Transit Insurance Company was invalid and granted the petition to permanently stay arbitration.

ORDERED that the order is reversed, on the law and the facts, with costs, the petition is denied, and the proceeding is dismissed.

The respondents Arlene Wingo and Diane Prather were passengers in one of two automobiles involved in an accident which occurred on March 13, 2004, in New York City. As a result of the accident Wingo and Prather sustained injuries, and their attorney wrote a letter dated April 13, 2004, to the appellant, American Transit Insurance Company (hereinafter American Transit) seeking verification of coverage. Testimony adduced at the framed-issue hearing herein demonstrated, inter alia, that Prather also applied to American Transit in June 2004 for no-fault benefits based on the subject accident and that it received an MV-104 form pertaining to the accident from the broker on April 22, 2004. However, American Transit was not notified by its insured, Abdul Rehman, the owner and driver of the other vehicle involved in the accident, of the commencement in December 2004, of an action by Wingo and Prather against him for personal injuries sustained in the accident. American Transit first learned of that action when it received a copy of the motion for a default judgment served by the attorney for Wingo and Prather on March 23, 2005.

Neither American Transit's insured, Rehman, nor the injured claimants, Wingo and Prather, provided American Transit with notice of the commencement of litigation by providing a copy of the papers served in the lawsuit pursuant to the American Transit policy provisions requiring immediate forwarding of such papers (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332; American Tr. Ins. Co. v Sartor, 3 NY3d 71). Thus, the written disclaimer on this ground sent by American Transit on April 7, 2005, to its insured, Rehman, copies of which were sent to Rehman's broker and the attorney for Wingo and Prather, was valid (see Argo Corp. v Greater N.Y. Mut. Ins. Co., supra; American Tr. Ins. Co. v Sartor, supra). Accordingly, the Rehman vehicle was uninsured for the subject accident, and the petition by Geico Co. for a permanent stay of the arbitration demanded by Wingo and Prather should have been denied and the proceeding dismissed.

 

In the Matter of United Services Automobile Association Property and Casualty Insurance Company v. DeRosa


         DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to stay arbitration of claims for uninsured/underinsured motorist benefits, United Services Automobile Association Property and Casualty Insurance Company appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated July 6, 2006, which denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

Contrary to the appellant's contention, the respondents' demands for arbitration of their claims for uninsured/underinsured motorist benefits were not served in a manner intended to conceal their nature or to precipitate a default (cf. Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441; Matter of American Sec. Ins. Co. [Tabacchi], 95 AD2d 808; Rider Ins. Co. v Marino, 84 AD2d 832). Accordingly, since the apellant otherwise failed to seek a stay of arbitration within the relevant 20-day period, its petition was properly denied as untimely (see CPLR 7503[c]; Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082; Matter of Government Employees Ins. Co. v Castillo-Gomez, 34 AD3d 477).

Diamond State Ins. Co., as subrogee of Gentry Apartments, Inc. v. Utica First Ins. Co.

 

Law Office of Max W. Gershweir, New York (Max W.
Gershweir of counsel), for appellant.
Marshall, Conway & Wright, P.C., New York (Christopher T.
Bradley of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 25, 2006, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to compel disclosure of all materials from defendant's claim file which post-date defendant's disclaimer and pre-date the expiration of defendant's 30-day settlement period, except those containing privileged communications between defendant and present counsel in connection with this action, and any documents concerning any interpretation of defendant's roofing exclusion in connection with other claims against defendant's insureds which pre-date the expiration of defendant's settlement period, unanimously reversed, on the law, without costs, and the motion granted to that extent.

This subrogation action arises from a fire on the roof of premises owned by Gentry Apartments, Inc., plaintiff Diamond State Insurance Company's insured. Diamond alleges that La Pioggia Construction Corp., defendant Utica First Insurance Company's insured, was using a torch to seal a leak on the roof of the premises when a fire broke out. Defendant disclaimed coverage for La Pioggia, relying on the roofing operating exclusion endorsement of its insurance policy. Diamond paid Gentry the loss and commenced an action as Gentry's subrogee against La Pioggia in an underlying action. Diamond obtained a default judgment against La Pioggia in the underlying action and gave Utica 30 days to tender its policy. After Utica failed to respond, Diamond commenced the instant action, alleging, inter alia, that Utica, in bad faith, refused to tender its policy.

Diamond sought discovery, and Utica lodged various objections. At issue on this appeal are (1) seven documents from Utica's claim file which post-date its disclaimer and pre-date its 30-day settlement period,[FN1] and (2) documents concerning any interpretation of Utica's roofing exclusion policy in connection with claims against other insureds of Utica which pre-date the expiration of Utica's 30-day settlement period. Supreme Court denied plaintiff's request for these documents. We reverse and direct their production.

New York law requires full disclosure of all material and necessary matter to prosecute or defend an action (see CPLR 3101[a]; Spectrum Sys. Intern. Corp. v Chemical Bank, 78 NY2d 371, 376 [1991]). Here, Diamond alleges that Utica acted in bad faith when it disclaimed coverage. As Supreme Court correctly observed, "[a] discovery motion is not the appropriate vehicle for resolution of substantive claims." However, the motion court unduly restricted Diamond's discovery request. Disclosure should have been granted with respect to Utica's other insureds' claims involving the same policy exclusion, since Utica's prior interpretation of that exclusion directly reflects on whether its proffered interpretation and its refusal to settle in this case were in bad faith. Furthermore, this Court has held that an insurer may not use attorney-client, litigation or work product privileges to shield it from disclosing relevant information in an action predicated on bad faith (see Woodson v American Tr. Ins. Co., 280 AD2d 328 [2001]). Accordingly, the motion court should have granted disclosure of the materials from defendant's claim file which post-date defendant's disclaimer and pre-date the expiration of defendant's 30-day settlement period, except those which Diamond does not challenge on appeal.

Notwithstanding Utica's contrary contention, the record is sufficiently complete to allow appellate review.

 

Steele v. Motor Vehicle Accident Indemnification Corporation

 

Petitioner appeals from an order of the Supreme Court, Bronx County (Patricia Anne Williams, J.), entered December 8, 2004, which denied the petition for leave to commence an action against respondent, and from an order, same court and Justice, entered September 15, 2005, which granted reargument of the earlier order and adhered to the original determination.


Raymond Schwartzberg & Associates, PLLC, New
York (Raymond
Schwartzberg of counsel), for
appellant.
Morris, Duffy, Alonso & Faley, LLP, New York
(Anna J. Ervolina, Yolanda
L. Ayala and Andrea M.
Alonso of counsel), for
respondent.

SULLIVAN, J.

On April 8, 1998, while bicycle riding with a friend, the 13-year-old petitioner was struck by what the children described as a "van," which then drove off. Petitioner suffered a fractured jaw, inter alia, that required surgical intervention. On June 26, 1998, petitioner, a qualified person under the Motor Vehicle Accident Indemnification Corporation (MVAIC) Act (see Insurance Law § 5202[b]), acting through her mother, served respondent corporation with a notice of claim in satisfaction of Insurance Law § 5208(a)(2)(A).

On March 26, 2001, petitioner, by her mother and natural guardian, commenced a personal injury action in Supreme Court, Bronx County, against Diego Cuadros, to whom the license plate number of the "hit and run" vehicle (as reported to petitioner's mother) had been registered, the "John Doe" operator of the vehicle, and MVAIC. Petitioner never sought judicial permission to sue MVAIC, as required by Insurance Law § 5218, and the corporation did not appear in the action. Upon Cuadros's showing that the vehicle bearing license plate number F251MB, the number of a plate he had once owned, was a car, not a van, and that the plates had been surrendered and destroyed six months before the accident, petitioner, by her attorney, ultimately entered into a stipulation discontinuing the action with prejudice against Cuadros on February 21, 2003. By that time, petitioner had attained majority.

Thereafter, on or about August 18, 2004, arguing, inter alia, that the identity of the van's owner and driver had not been ascertained, petitioner sought leave to commence an action against MVAIC [FN1]. This application was supported by affidavits from petitioner's mother and the friend with whom she was bicycle riding at the time of the accident, and by her attorney's affirmation, which detailed the unsuccessful efforts he had made to ascertain the identity of the driver of the van. His DMV search determined that the license plate number "F251MB" had been registered to a sedan, rather than a van, owned by Cuadros, and that Cuadros had furnished documentation that the plates had been surrendered to the DMV at least six months before the accident. Petitioner also submitted an affidavit from Cuadros, who confirmed that he was not involved in the accident.

MVAIC opposed the petition on the ground of untimeliness, asserting that Insurance Law § 5218(c) requires such an application to be made within three months after a judicial determination that the identity of the owner or operator of the motor vehicle involved in the accident has not been established,[FN2] and since the petition was filed more than two years after petitioner was aware that the owner and operator could not be identified, her application should be barred. Supreme Court denied the petition, noting that petitioner had offered no explanation for the "over two year delay" in seeking leave after learning of Cuadros's non-involvement in the accident, and citing the absence of a judgment for purposes of Insurance Law 5218(c) in terminating the action against Cuadros.

Petitioner moved to renew and reargue, urging that although reply papers to the original motion had been served and she had sought an adjournment of the original motion, she had not been advised of the disposition of the application for an adjournment. Attaching a copy of those reply papers from the original motion and the stipulation discontinuing the prior action against Cuadros, which had not been so-ordered by the court, petitioner stated that no judgment had been entered in the action against Cuadros and thus Insurance Law § 5218(c) was inapplicable; the petition, brought within three years of her having attained majority, should thus be considered timely. MVAIC opposed the motion, arguing, inter alia, that the petition was untimely in view of the date of the filed stipulation of discontinuance. The court granted reargument but adhered to its prior determination. We disagree with that disposition.

Petitioner's application for leave to sue MVAIC, brought within three years of her reaching majority and only after she had made all reasonable efforts to ascertain the identity of the owner and operator of the offending vehicle, was timely and properly made and should have been granted. The stipulation of discontinuance, which never received judicial approval by being "so-ordered," does not constitute a judgment so as to trigger the three-month extension provided by Insurance Law § 5218(c) for seeking leave to sue MVAIC.

In any event, the three-month extension provided in section 5218(c) is not a limitations period; rather, it is a savings clause intended to provide qualified persons, who were unsuccessful in litigation in establishing that the putative owner or operator of the hit and run vehicle was actually involved in the accident, additional time to sue MVAIC in the event the applicable statute of limitations, i.e., three years for personal injury actions (CPLR 214), has run in the interim. Nowhere in the MVAIC Act is there a general limitations period for seeking leave to sue MVAIC. The courts have held that an application to sue MVAIC is timely if made within the applicable statue of limitations (see generally Matter of Hickman, 75 NY2d 975 [1990] [application by decedent's estate to commence an action against MVAIC timely made within the two-year wrongful death limitations period]; Matter of Velez v Motor Veh. Acc. Indem. Corp., 56 AD2d 764 [1977] [petition for leave to sue MVAIC for personal injury timely if brought within the applicable three-year limitations period]).

Here, petitioner attained majority on July 28, 2002. She brought the instant petition for leave to sue on August 18, 2004, well within the applicable three-year statute of limitations for a personal injury action (CPLR 214), which had been tolled during her infancy (CPLR 208). Petitioner, as noted, had satisfied the initial notice of claim requirement by filing the same within 90 days of the accident (see Insurance Law § 5208[2][A]). It would make no sense to construe Insurance Law § 5218(c)'s three-month extension period as a strict requirement, as MVAIC argues, so as to bar a lawsuit by the qualified person who was unsuccessful in obtaining a judgment in a personal injury action solely because of the inability to establish the identity of the owner or operator of the offending vehicle, while allowing the full extent of the limitations period to the qualified person who never even brought such an action because, despite exhausting all reasonable efforts, he or she was unable to ascertain the identity of even a putative owner or operator.

We recognize that in at least two cases the Second Department has interpreted the three-month provision of § 5218(c) as a strict limitations period that supplants the applicable statute of limitations (Matter of Gittens v Motor Veh. Acc. Indem. Corp., 7 AD3d 528 [2004]; Matter of Kearse v Motor Veh. Acc. Indem. Corp., 28 AD2d 703 [1967]). For the reasons stated, we decline to accord the three-month provision a similar interpretation.

Finally, we note that petitioner was not obliged to enter judgment in her action against Cuadros. Section 5218 does not require, as a prerequisite to securing leave to sue MVAIC, that a judgment be entered in favor of a would-be owner or operator solely on a ground set forth in subdivision (c) as long as the qualified person has made "all reasonable efforts . . . to ascertain the identity of the motor vehicle and of the owner and operator" (§ 5218[b][5]). The action against Cuadros was terminated by a stipulation of discontinuance with prejudice solely, as Cuadros demonstrated, by virtue of his non-involvement in the April 8, 1998 accident. Nor is there any merit to MVAIC's claim of laches, an equitable doctrine that requires a showing of prejudice due to delay (see Matter of Linker, 23 AD3d 186, 189 [2005]). None has been shown.

While Insurance Law § 5218(b) provides that the court, after a hearing, may permit an action against MVAIC upon satisfaction of certain enumerated conditions (see subd. [b][1-6]), those conditions have clearly been met and MVAIC does not raise any issue in that regard except to argue, as noted, that there has been no judicial determination that Cuadros was not involved in the accident. Petitioner has shown that she cannot ascertain the identity of the owner or operator of the offending vehicle. Thus, there is no need for a hearing.

Accordingly, the order of the Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 15, 2005, which, upon a grant of reargument of an earlier order denying the petition for leave to commence an action against MVAIC, adhered to the original determination, should be reversed, on the law, without costs or disbursements, and the petition granted. The appeal from the earlier order, same court and Justice, entered December 8, 2004, should be dismissed, without costs or disbursements, as superseded by the appeal from the order entered September 15, 2005.

All concur.

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

ENTERED: FEBRUARY 1, 2007

CLERK

Footnotes



Footnote 1:While the caption of the proceeding specified that the application was for leave to sue MVAIC pursuant to § 5208 of the Insurance Law, the statute applicable to such a proceeding is § 5218.

Footnote 2:Insurance Law § 5218(c) provides: In any action in which the plaintiff is a qualified person, for the death of, or bodily injury to, any person arising out of the ownership, maintenance or use of a motor vehicle in this state and judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle: (i) the identity of which, and the owner and operator of which, has not been established, or (ii) which was in the possession of some person other than the owner or his agent without the consent of the owner and the identity of the operator has not been established, that ground shall be stated in the judgment. The plaintiff, upon complying with paragraph one of subsection (a) of section five thousand two hundred eight of this article, may within three months from the date of the entry of the judgment make application to bring an action upon the cause against the corporation in the manner provided in this section.

 

American Manufacturers Mutual Ins. Co. v. Utica First Ins. Co.




Appeal from an order of the Supreme Court, Oneida County (John W. Grow, J.), dated January 5, 2006 in a proceeding pursuant to CPLR article 75. The order, among other things, denied the petition.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (MARY KENDRICK-GAFFNEY OF COUNSEL), FOR PETITIONER-APPELLANT.
GOLDBERG SEGALLA LLP, SYRACUSE (KENNETH M. ALWEIS OF COUNSEL), FOR RESPONDENT-RESPONDENT.


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

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking to vacate the award of an appeal panel of arbitrators rejecting petitioner's claim for contribution from respondent with respect to that portion of a personal injury settlement paid by petitioner. Supreme Court properly denied the petition and granted respondent's cross motion to confirm the award. "Petitioner failed to meet its heavy burden of establishing that the award is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the . . . power' " of the appeal panel of arbitrators (Matter of Mohawk Val. Community Coll. [Mohawk Val. Community Coll. Professional Assn.], 28 AD3d 1140, 1141, quoting Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 NY2d 907, 909). Contrary to petitioner's contention, the award is consistent with the decision of this Court in the underlying personal injury action (Pastella v R.S. Hulbert Bldrs., 305 AD2d 998). We therefore reject petitioner's contention that, because the award is contrary to that decision, the appeal panel of arbitrators exceeded its power and reached an irrational result.

Bi-Economy Market, Inc. v. Harleysville Insurance Company




Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered February 21, 2006. The order, insofar as appealed from, granted defendants' motion for leave to amend the answer and for partial summary judgment dismissing the second cause of action and denied plaintiff's cross motion for partial summary judgment on the first cause of action.

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

Memorandum: Plaintiff commenced this action alleging, inter alia, that defendants breached the terms of the insurance policy issued to plaintiff. Supreme Court properly granted that part of defendants' motion seeking summary judgment dismissing the cause of action for breach of contract. That cause of action seeks consequential damages only, and " such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting' " (Kenford Co. v County of Erie, 73 NY2d 312, 319; see Martin v Metropolitan Prop. & Cas. Ins. Co., 238 AD2d 389, 390). Here, the insurance policy expressly excludes coverage for consequential losses, and thus it cannot be said that such damages were "contemplated by the parties when the contract was formed" (Crawford Furniture Mfg. Corp. v Pennsylvania Lumbermens Mut. Ins. Co., 244 AD2d 881, 881; see J.R. Adirondack Enters. v Hartford Cas. Ins. Co., 292 AD2d 771, 772).

The further contention of plaintiff that the court erred in denying its cross motion for partial summary judgment on the first cause of action is raised for the first time in plaintiff's reply brief and thus is not properly before this Court (see Turner v Canale, 15 AD3d 960, 961, lv denied 5 NY3d 702; Greene v Xerox Corp., 244 AD2d 877, 878, lv denied 91 NY2d 809).

Larrieut v. Gutterman


Hawkins Feretic & Daly, LLC, New York, N.Y. (James M.
Merlino of counsel), for appellants.
Martin H. Pollock, Mineola, N.Y., for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Rachel Gerdes and Fritz Clairvil appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated November 23, 2005, as denied that branch of their motion which was 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 affirmed insofar as appealed from, with costs.

The defendants Rachel Gerdes and Fritz Clairvil (hereinafter the defendants) failed to meet their prima facie burden on that branch of their motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) 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 affirmed medical report of the defendants' examining orthopedist set forth range of motion findings with respect to the plaintiff's cervical and lumbar spine, as well as his right shoulder and right knee, the examining orthopedist failed to compare those findings to the normal range of motion (see Iles v Jonat, 35 AD3d 537; Mirochnik v Ostrovskiy, 35 AD3d 413; Kavanagh v Kuldip Singh, 34 AD3d 744; Caracci v Miller, 34 AD3d 515; Agathe v Tun Chen Wang, 33 AD3d 737; 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). Moreover, the defendants' examining neurologist, in discussing range of motion testing performed on the plaintiff in his affirmed report, merely stated that such testing revealed "full range of motion" of the cervical spine, both shoulders, as well as the lower torso. However, he failed to set forth the objective testing he performed in order to reach the conclusion that the plaintiff did not sustain any limitations in range of motion in these areas as a result of the subject accident (see Schacker v County of Orange, 33 AD3d 903; Ilardo v New York City Tr. Auth., 28 AD3d 610; Kelly v Rehfeld, 26 AD3d 469; Nembhard v Delatorre, 16 AD3d 390; Black v Robinson, 305 AD2d 438). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of the plaintiff's opposition papers (see Iles v Jonat, supra; Schacker v County of Orange, supra; Coscia v 938 Trading Corp., supra).
MASTRO, J.P., RITTER, SKELOS, CARNI and McCARTHY, JJ., concur.

Guevara v. Baginski



Finkelstein & Partners, LLP, Newburgh, N.Y. (Kristine M. Cahill
of counsel), for appellants.
John C. Buratti, Yonkers, N.Y. (Philip M. Aglietti of counsel),
for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 18, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Ovidia Guevara did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2), as limited by their brief, from so much of an order of the same court dated December 16, 2005, as denied that branch of their motion which was for leave to renew.

ORDERED that the order dated October 18, 2005, is reversed, on the law, and the motion for summary judgment dismissing the complaint on the ground that the plaintiff Ovidia Guevara did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied; and it is further,

ORDERED that the appeal from the order dated December 16, 2005, is dismissed as academic; and it is further,

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

Contrary to the plaintiffs' assertion, the defendants established good cause for their delay in making their motion for summary judgment (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648). However, on the merits of their motion, the defendants failed to establish, prima facie, that the plaintiff Ovidia Guevara (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The medical reports proffered in support of the defendants' motion were one and two years old at the time the defendants moved for summary judgment. In the interim, the plaintiff had further medical treatment that was not addressed in the defendants' reports. Moreover, the conclusions made therein were not supported by objective medical findings.

In light of our determination on the appeal from the order dated October 18, 2005, the appeal from the order dated December 16, 2005 has been rendered academic.
SCHMIDT, J.P., RIVERA, SKELOS and LUNN, JJ., concur.

Eybers v. Silverman


John C. Buratti, Yonkers, N.Y. (Philip M. Aglietti of counsel), for
appellants-respondents.
Gary Mitchel Gash (Pollack Pollack Isaac & De Cicco, New
York, N.Y. [Brian J. Isaac and
Kenneth J. Gorman] of counsel), for
respondents-appellants.

 

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, (1) the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Smith, J.), dated September 29, 2005, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Jessica Eybers on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their cross motion which was for summary judgment on the issue of liability, and (2) the plaintiffs appeal from so much of an order of the same court dated December 14, 2005, as denied their motion, in effect, for leave to reargue.

ORDERED that the appeal from the order dated December 14, 2005, is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
ORDERED that the order dated September 29, 2005, is reversed insofar as cross-appealed from, on the law, and that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability is granted; and it is further,

ORDERED that the order dated September 29, 2005, is affirmed insofar as appealed from; and it is further,

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

The plaintiffs' motion, which resulted in the order dated December 14, 2005, although denominated as one for leave to renew and reargue, was, in effect, a motion for leave to reargue, the denial of which is not appealable (see Rivera v Toruno, 19 AD3d 473, 474; Sallusti v Jones, 273 AD2d 293, 294).

The defendants failed to make a prima facie showing that the plaintiff Jessica Eybers (hereinafter Jessica) 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 support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by Jessica, the defendants relied upon, inter alia, Jessica's medical reports and records. One of these noted the existence of limitations in the range of motion of her cervical spine without sufficient quantification or qualification to establish that the limitation of motion was not significant (see Brown v Motor Veh. Acc. Indem. Corp., 33 AD3d 832; Mendola v Demetres, 212 AD2d 515; see also Smith v Delcore, 29 AD3d 890; Sano v Gorelik, 24 AD3d 747; Kaminsky v Waldner, 19 AD3d 370). Moreover, the affirmed medical report of the defendants' examining neurologist noted that she had "full" range of motion in her neck, yet he failed to state what objective testing he used to arrive at his conclusion that she did not have any limitations (see McCrary v Street, 34 AD3d 768; Ilardo v New York City Tr. Auth., 28 AD3d 610, 611; Kelly v Rehfeld, 26 AD3d 469, 470; Nembhard v Delatorre, 16 AD3d 390, 391; Black v Robinson, 305 AD2d 438, 439). Since the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the papers submitted in opposition to the defendants' motion (see Coscia v 938 Trading Corp., 283 AD2d 538).

The Supreme Court, however, erred in denying that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability. A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, imposing a duty of explanation on that operator to excuse the collision (see Filippazzo v Santiago, 277 AD2d 419, 419; Power v Hupart, 260 AD2d 458).

In support of this branch of the cross motion, the plaintiffs established their prima facie entitlement to judgment as a matter of law by relying on the affidavit of the defendant driver, who admitted that he struck the rear of the plaintiffs' vehicle after noticing it when he was only two car lengths away (see Zuckerman v City of New York, 49 NY2d 557, 562). The defendants failed to raise a triable issue of fact by coming forward with a non-negligent explanation for the subject accident (see Console v Wyckoff Hgts. Med. Ctr., 19 AD3d 637, 638).

The plaintiffs' remaining contentions are without merit.
CRANE, J.P., MASTRO, SANTUCCI, LIFSON and ANGIOLILLO, JJ., concur.

 

Ali v Brooks


Harmon, Linder & Rogowsky, Mineola, N.Y. (Mitchell Dranow of
counsel), for appellant.
James P. Nunemaker, Jr., Uniondale, N.Y. (Gene W. Wiggins of
counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Dabiri, J.), dated September 21, 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), and (2) a judgment of the same court dated May 15, 2006, which, upon the order, is in favor of the defendant and against him, dismissing the complaint.

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

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

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

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on 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]).

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Aponte v Tusa, 28 AD3d 407; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). The plaintiff failed to raise a triable issue of fact either by his submissions in opposition to the defendant's motion or by his submissions on a subsequent motion for leave to renew.
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

McDonald v. Pookie Hacking Corp.



Timothy M. Sullivan, New York, N.Y., for appellants.
Leav & Steinberg, LLP, New York, N.Y. (Joseph P. Stoduto of
counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Pookie Hacking Corporation and Asif Nazir appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 3, 2005, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

While we affirm the order appealed from, we do so on grounds other than those relied upon by the Supreme Court. The defendants Pookie Hacking Corporation and Asif Nazir (hereinafter the defendants) failed to establish prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In his affirmed medical report, the defendants' examining orthopedist conceded the existence of limitations in the plaintiff's lumbar spine range of motion based on his examination of the plaintiff as well as the existence of a causal relationship between the subject accident and the plaintiff's reported symptomatology (see Museau v New York City Transit Auth., 34 AD3d 772; Smith v Delcore, 29 AD3d 890; 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 defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Smith v Delcore, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., SPOLZINO, FISHER, LIFSON and DICKERSON, JJ., concur.

 

Albano v. Onolfo


James P. Nunemaker, Jr., Uniondale, N.Y. (Joseph G. Gallo of
counsel), for appellants.
Bennett, Giuliano, McDonnell & Perrone, LLP, New York, N.Y.
(Jeffrey R. Krantz and Nicholas P.
Giuliano 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, Nassau County (Spinola, J.), entered April 6, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that the injured 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 defendants established their 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; Giraldo v Mandanici, 24 AD3d 419; Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiff failed to raise a triable issue of fact. The findings contained in the affirmation of the plaintiff's treating orthopedist, and his accompanying reports, were not based on a recent examination of the plaintiff (see D'Alba v Yong-Ae Choi, 33 AD3d 650; Gomez v Epstein, 29 AD3d 950; Legendre v Siqing Bao, 29 AD3d 645; Cerisier v Thibiu, 29 AD3d 507; Tudisco v James, 28 AD3d 536; Barzey v Clarke, 27 AD3d 600; Murray v Hartford, 23 AD3d 629). Moreover, the plaintiff failed to adequately explain a lengthy gap in her treatment between 2003 and her last examination in 2005 (see Pommells v Perez, 4 NY3d 566, 574; Gomez v Epstein, 29 AD3d 950).

The only other medical proof submitted by the plaintiff was the affirmation and lumbar magnetic resonance imaging report of her treating radiologist. His affirmation and accompanying report noted only the existence of herniated and bulging discs in the plaintiff's spine. The mere existence of a herniated or bulging disc is not evidence of serious injury in the absence of objective medical 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 self-serving affidavit was insufficient to meet that requirement (see Yakubov v CG Trans Corp., supra; see also Felix v New York City Tr. Auth., 32 AD3d 527; Fisher v Williams, 289 AD2d 288), and the plaintiff's radiologist expressed no opinion as to causation (see Collins v Stone, 8 AD3d 321).

Finally, the plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the accident (see Felix v New York City Tr. Auth., supra; Sainte-Aime v Ho, 274 AD2d 569).
MILLER, J.P., SPOLZINO, KRAUSMAN, FISHER and DILLON, JJ., concur.

Atkinson v. Oliver



Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Michael I. Josephs of counsel), for appellant.
Block & O'Toole, New York (David L. Scher of counsel), for
respondent.

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered January 18, 2006, which denied defendant Pineda-Lugo's motion for summary judgment to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of said defendant dismissing the complaint as against him.

Plaintiff's injury was sustained while she was a passenger in a taxi that rear-ended a vehicle driven by Pineda-Lugo. That driver satisfied his burden on summary judgment by presenting a prima facie case that plaintiff suffered no serious injury pursuant to Insurance Law § 5102(d); his expert reviewed plaintiff's MRI reports and examined plaintiff a year after her injuries to assess quantitative range-of-motion limitations, finding none. On the other hand, plaintiff failed to raise a triable issue of material fact as to whether her injury was a serious one. While she submitted evidence of various injuries and pain in the cervical spine, lumbar spine, left shoulder, leg and lower back that allegedly caused her to be unable to resume employment for 104 days, she failed to submit the requisite contemporaneous quantitative assessment of range-of-motion limitations based on objective testing (see Toulson v Young Han Pae, 13 AD3d 317 [2004]; see also Pommells v Perez, 4 NY3d 566 [2005], affg 4 AD3d 101 [2004]). The quantitative range-of- motion assessment she did submit was made two years after the accident, apparently for purposes of litigation, by a physician who examined her only on that one occasion (see Vaughn v Baez, 305 AD2d 101 [2003]; compare Silva v Vizcarrondo, 31 AD3d 292 [2006] [plaintiff met "minimal standard" to substantiate her serious injury claim where her expert, who began treatment for her injuries shortly after the accident, made the quantified assessment 17 months later]). Plaintiff's treating physician never made such an assessment, and diagnosed her as merely suffering soft tissue injuries.

Plaintiff also failed to establish that she was incapacitated from performing substantially all of her usual and customary activities for at least 90 of the first 180 days after the accident. The record is devoid of proof concerning how her injuries limited her daily activities or caused her alleged inability to work at a desk job for approximately three months.

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

Cervino v. Gladysz-Steliga



Mallilo & Grossman, Flushing, N.Y. (Christopher Bauer of
counsel), for appellants.
Robert P. Tusa (Shapiro, Beilly, Rosenberg, Aronowitz, Levy &
Fox, LLP, New York, N.Y. [Roy J.
Karlin] of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated October 25, 2005, as granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that none 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; see also Kearse v New York City Tr. Auth., 16 AD3d 45). In opposition, the plaintiffs failed to raise a triable issue of fact. The separate affidavits of the plaintiffs' treating chiropractor were insufficient to raise a triable issue of fact as to whether any of the plaintiffs sustained a serious injury within the meaning of the no-fault statute as a result of the subject accident since neither he, nor the plaintiffs, adequately explained the plaintiffs' respective five-year gaps in treatment (see Pommells v Perez, 4 NY3d 566; see also D'Alba v Yong-Ae Choi, 33 AD3d 650; Gomez v Epstein, 29 AD3d 950; Batista v Olivo, 17 AD3d 494).

Furthermore, the conclusion of the plaintiffs' treating chiropractor that the injuries and limitations in the range of motion of the spine of the plaintiff Judith Cervino were caused by the subject accident was speculative in light of the fact that he failed to address or even acknowledge the fact that she had previously injured her neck and back in a prior 1997 car accident (see Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470).

Lastly, the plaintiffs failed to submit competent medical evidence that the injuries they sustained in the accident rendered them unable to perform substantially all of their daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Felix v New York City Tr. Auth., 32 AD3d 527; Sainte-Aime v Ho, 274 AD2d 569).
SCHMIDT, J.P., RIVERA, SKELOS and LUNN, JJ., concur.

Gonzalez v. Baik



James P. Nunemaker, Jr., Uniondale, N.Y. (Joseph G. Gallo of
counsel), for appellants.
Lazarowitz & Manganillo, LLP, Brooklyn, N.Y. (Michael S.
Lazarowitz of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated November 16, 2005, as 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 insofar as appealed from, with costs.

Contrary to the determination of the Supreme Court, the defendants established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident which occurred on May 2, 2003, on the ground, inter alia, that he currently exhibited no limitations of range of motion (see Kearse v New York City Tr. Auth., 16 AD3d 45). However, the plaintiff, in opposition, submitted the affirmation of his treating physician quantifying loss of range of motion based upon a recent examination performed by him and concluding that the plaintiff's "functional disabilities and limitations . . . are causally related to the automobile accident which occurred on May 2, 2003." Accordingly, there are triable issues of fact which preclude the granting of summary judgment on the issue of serious injury (see Cenatus v Rosen, 3 AD3d 546).
RITTER, J.P., GOLDSTEIN, FLORIO and COVELLO, JJ., concur.

Torres v. Performance Automobile Group, Inc.



Mintz & Schaffer, Mineola, N.Y. (Mitchell Dranow of counsel),
for appellant.
Fogarty, Felicione & Duffy, P.C., Mineola, N.Y. (Paul
Felicione of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiff Tina L. Simpson appeals, as limited by her brief, (1) from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated September 28, 2005, as granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted by her in her individual capacity on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, her cross motion for summary judgment on the issue of liability, and (2) from so much of a judgment of the same court entered November 28, 2005, as, upon the order, dismissed the complaint insofar as asserted by her in her individual capacity.

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

ORDERED that the judgment is reversed insofar as appealed from, on the law, the motion is denied, the complaint insofar as asserted by the plaintiff Tina L. Simpson in her individual capacity is reinstated, the matter is remitted to the Supreme Court, Nassau County, for a determination of the plaintiff's cross motion on the merits, and the order dated September 28, 2005, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff Tina L. Simpson.

The appeal from the intermediate order 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 appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The defendants failed to make a prima facie showing that the plaintiff Tina L. Simpson (hereinafter 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' motion papers did not adequately address the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The subject accident occurred on August 28, 2003. The plaintiff testified, at her deposition, that she went to work, in a limited capacity, until September 26, 2003, when she was no longer able to do so. She was out of work, on the advice of her treating physician, until February 2004. Thus, the plaintiff was out of work for five months out of the first six months post-accident. The defendants' examining orthopedist and neurologist conducted their separate examinations of the plaintiff nearly 1½; years post-accident. Neither expert related their findings to this category of serious injury for the period of time immediately following the accident (see Lopez v Geraldino, AD3d [2d Dept, Dec. 5, 2006]; Nakanishi v Sadaqat, AD3d [2d Dept, Dec. 5, 2006]; Faun Thai v Butt, 34 AD3d 447; Museau v New York City Tr. Auth., 34 AD3d 772; Talabi v Diallo, 32 AD3d 1014; Volpetti v Yoon Kap, 28 AD3d 750; Sayers v Hot, 23 AD3d 453). Since the defendants failed to satisfy their prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Sayers v Hot, supra; Coscia v 938 Trading Corp., 283 AD2d 538).

In view of our determination, the matter must be remitted to the Supreme Court, Nassau County, for a determination of the plaintiff's cross motion on the merits (see Korpalski v Lau, 17 AD3d 536).
RITTER, J.P., GOLDSTEIN, FLORIO and COVELLO, JJ., concur.

Whitfield-Forbes v.  Pazmino



Orlow & Orlow, P.C., Forest Hills, N.Y. (Jodi Orlow of counsel),
for appellant.
Picciano & Scahill, Westbury, N.Y. (Robin Mary Heaney and
Francis J. Scahill of counsel), for
respondents Andrea Pazmino and Ron Chen.

 

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 (Feinman, J.), entered December 8, 2005, as granted the motion of the defendants Andrea Pazmino and Ron Chen 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), and granted that branch of the cross motion of the defendants Financial Leasing Co., Inc., Harold Povodnick, and Wendy's International, Inc., which was 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 affirmed insofar as appealed from, with costs to the defendants Andrea Pazmino and Ron Chen.

The defendants satisfied their respective prima facie burdens of 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). In opposition, the plaintiff failed to raise a triable issue of fact. The findings contained in the affirmed medical report of the plaintiff's treating physician, Dr. Genato, were not based on a recent examination of the plaintiff (see D'Alba v Yong-Ae Choi, 33 AD3d 650; Gomez v Epstein, 29 AD3d 950; Legendre v Siqing Bao, 29 AD3d 645, 646). The limitations in the plaintiff's rotational movement of her cervical spine, as noted in the affirmed medical reports of the plaintiff's other treating physician, Dr. Ledon, were of an insignificant nature (see Mendes v Codianni, 8 AD3d 636, 637; Hammerling v Korn, 8 AD3d 227, 228; Trotter v Hart, 285 AD2d 772, 773). The affirmation of the plaintiff's treating radiologist, which set forth the results of the plaintiff's cervical spine magnetic resonance imaging, did not, alone, raise a triable issue of fact as to whether she sustained a serious injury (see Mejia v DeRose, AD3d [2d Dept, Dec. 5, 2006]; Cerisier v Thibiu, 29 AD3d 507, 508; Bravo v Rehman, 28 AD3d 694, 695; Kearse v New York City Tr. Auth., 16 AD3d 45, 50; Diaz v Turner, 306 AD2d 241, 242). The mere existence of a herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v DeRose, supra; Kearse v New York City Tr. Auth., supra; Diaz v Turner, supra). In the absence of such admissible objective evidence of injury, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether she sustained a serious injury (see Felix v New York City Tr. Auth., 32 AD3d 527, 528; Ramirez v Parache, 31 AD3d 415, 416).

The plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the accident (see D'Alba v Yong-Ae Choi, 33 AD3d 650; Sainte-Aime v Ho, 274 AD2d 569).
CRANE, J.P., MASTRO, SANTUCCI, LIFSON and ANGIOLILLO, JJ., concur.

Burke v. Carney



Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered February 14, 2006 in a personal injury action. The order, insofar as appealed from, granted defendants' motions and cross motion for summary judgment dismissing the amended complaint.


Giangreco Law Firm, P.C., Buffalo (Mark Giangreco Of Counsel), For Plaintiff-Appellant.
Dixon & Hamilton, Llp, Getzville (Michael B. Dixon Of Counsel), For Defendant-Respondent James L. Carney.
Rupp, Baase, Pfalzgraf, Cunningham & Coppola Llc, Buffalo (Thomas P. Cunningham Of Counsel), For Defendants-Respondents Ephraim Hunter And Isaiah Woodard.
The Cambs Law Firm, Llp, Camillus (Jennifer E. Mathews Of Counsel), For Defendant-Respondent Aaron T. Stack.


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

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in two automobile accidents that occurred approximately five months apart. Supreme Court properly granted defendants' respective motions and cross motion for summary judgment dismissing the amended complaint. Defendants met their burden by establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under any of the categories of serious injury set forth in her bills of particulars and supplemental bills of particulars, and plaintiff failed to raise an issue of fact to defeat the motions and cross motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Although one of plaintiff's physicians concluded that plaintiff had a disc herniation, that physician failed to establish the extent or degree of the alleged physical limitations resulting from the disc injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351; Owen v Rapid Disposal Serv., 291 AD2d 782, 783-784). Moreover, the opinion of that physician was based largely on plaintiff's subjective complaints of pain (see Toure, 98 NY2d at 350), and he did not set forth the tests he conducted or their results to support his conclusions concerning the restrictions and limitations resulting from plaintiff's injuries (see Calucci v Baker, 299 AD2d 897, 898; Wiegand v Schunck, 294 AD2d 839, 840-841).

Gonzalez v. A.V. Managing, Inc.



Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Holly E. Peck of counsel), for appellants.
David Resnick & Associates, P.C., New York (Adam Drexler
of counsel), for respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 13, 2005, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Plaintiff stated at his deposition in October 2004 that he stopped treatment because "Doctors told me they couldn't do no further," and in his affidavit in May 2005 that he "stopped receiving medical treatment because the pain became permanent and the therapy was not helping anymore." In view, however, of statements to the contrary by his physician and in his appellate argument that further treatment was indicated, plaintiff's explanation for the cessation of treatment is legally insufficient (see generally Pommells v Perez, 4 AD3d 101 [2004], affd 4 NY3d 566 [2005]). His deposition statement that one of the reasons he terminated treatment was that "insurance wouldn't cover it any further" is in conflict with the other explanations plaintiff offered for the cessation of treatment. Moreover, his records at the facility where he was treated, and at which he had range-of-motion studies performed about four months after his accident, show that plaintiff's cervical range for flexion was at 100%, and right and left lateral were at 106.67% and 111.11% of normal. His lumbar range for flexion was at 105%, and right and left lateral were at 120% and 112% of normal. Those tests thus confirm that plaintiff's condition was indeed normal. In light of the various and conflicting statements in the record regarding the cessation of treatment, we reject plaintiff's explanation.

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

Mack v.  Pullum

 



Appeals from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered February 27, 2006 in a personal injury action. The order, insofar as appealed from, denied in part defendants' motions for summary judgment.
 

 

Hurwitz & Fine, P.C., Buffalo (Scott M. Duquin Of Counsel), For Defendant-Appellant Maurice M. Pullum.
Law Office Of Roy A. Mura, Buffalo (Kris E. Lawrence Of Counsel), For Defendants-Appellants Aldora Rice And Tommie Lee Rice.
The Barnes Firm, P.C., Buffalo (Gregory H. Huether Of Counsel), For Plaintiff-Respondent.

 

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

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle collision. Defendant Maurice M. Pullum was operating the vehicle in which plaintiff was a passenger, and that vehicle was struck by a vehicle operated by defendant Tommie Lee Rice and owned by defendant Aldora Rice. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court granted defendants' respective motions in part, dismissing the complaint with respect to the significant disfigurement, fracture and permanent loss of use categories of serious injury. We conclude that the court properly denied those parts of the respective motions with respect to the permanent consequential limitation of use, significant limitation of use and 90/180 categories of serious injury. Although defendants met their initial burden with respect to those categories, we conclude that plaintiff raised issues of fact with respect thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562). In opposition to the motions, plaintiff submitted the affirmation and attached medical reports and records of a physician who concluded that the degenerative changes to plaintiff's spine before the accident were asymptomatic, and that physician established the extent or degree of the alleged physical limitations resulting from those conditions that plaintiff contends were aggravated as a direct result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351; cf. Owen v Rapid Disposal Serv., 291 AD2d 782, 782-783). Contrary to defendants' contention, the opinion of that physician was not based solely on plaintiff's subjective complaints of pain (see Toure, 98 NY2d at 350), and he set forth the tests he conducted and the results of those tests to support his conclusions concerning the restrictions and limitations resulting from plaintiff's injuries (see generally Calucci v Baker, 299 AD2d 897, 898; Wiegand v Schunck, 294 AD2d 839, 840-841).

Moore v. Gawel

 

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered April 5, 2006 in a personal injury action. The order granted defendant's motion for summary judgment dismissing the complaint.
 

Nicholas, Perot, Smith, Bernhardt & Zosh, P.C., Akron (Lawrence A. Perot Of Counsel), For Plaintiff-Appellant.
Burgio, Kita & Curvin, Buffalo (James P. Burgio Of Counsel), For Defendant-Respondent.
 

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 permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system 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 injuries he allegedly sustained when the vehicle in which he was a passenger collided with a vehicle owned and operated by defendant. Plaintiff appeals from an order granting defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). We reject the contention of plaintiff that Supreme Court erred in granting the motion insofar as the complaint, as amplified by the bill of particulars, alleges that he sustained a serious injury under the 90/180 category. Defendant met his initial burden with respect to that category by submitting the affirmation of his expert stating that plaintiff sustained no injury in the accident, along with evidence establishing that plaintiff missed 30 days of work during the first 180 days following the accident and that plaintiff's medical providers placed no restrictions on plaintiff's activities during that 180-day period (see Gonzalez v Green, 24 AD3d 939, 940). Plaintiff's submissions in opposition to the motion fail to raise a triable issue of fact with respect to the 90/180 category.

The court erred, however, in granting the motion insofar as plaintiff alleges that he sustained a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system. Defendant met his initial burden with respect to those categories by submitting the affirmation of his expert orthopedic surgeon asserting that plaintiff suffered no injury in the accident, the bulging discs at L4-L5 and L5-S1 are a result of degenerative changes rather than acute trauma, and the bulging discs do not account for plaintiff's alleged symptoms (see generally Pommells v Perez, 4 NY3d 566; Caldwell v Grant [appeal No. 2], 31 AD3d 1154, 1155). Plaintiff, however, raised triable issues of fact with respect to those categories by submitting the expert opinion of his treating chiropractor who relied upon objective proof of plaintiff's injury, provided quantifications of plaintiff's loss of range of motion along with qualitative assessments of plaintiff's condition, and concluded that "plaintiff's injury was significant, permanent, and causally related to the accident" (Vitez v Shelton, 6 AD3d 1180, 1182; see Evans v Mendola, 32 AD3d 1231; Coleman v Wilson, 28 AD3d 1198; Clark v Perry, 21 AD3d 1378, 1379). We therefore modify the order accordingly.

Zito v. Lezi

 

Steven C. Pepperman, New York, for appellant.
John C. Buratti & Associates, Yonkers (Jeffrey A. Domoto of
counsel), for respondents.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered December 19, 2005, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their initial burden of establishing, prima facie, that plaintiff had not suffered serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Defendants submitted the affirmation of an orthopedic surgeon, who, based upon his examination of plaintiff and objective medical tests, concluded that plaintiff had not suffered permanent consequential limitation or significant loss or impairment of the function of her neck, back or left knee by reason of the alleged automobile accident. Plaintiff failed to meet her consequent burden to adduce evidence showing an
objective medical basis for her claim of serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Suarez v Abe, 4 AD3d 288 [2004]).

DePascale v. Wolkoff, et al

 

Michael Majewski (Anita Nissan Yehuda, Roslyn Heights, N.Y.,
of counsel), for third-party defendant-appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New
York, N.Y. (Joel M. Simon of
counsel), for defendant third-party plaintiff-
respondent.
 

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant appeals (1) from an order of the Supreme Court, Nassau County (Brennan, J.), dated August 12, 2005, which denied its motion for summary judgment dismissing the third-party complaint and granted that branch of the cross motion of the defendant third-party plaintiff, Chase Manhattan Automotive Finance Corp., s/h/a Chase Auto Finance Group, which was for summary judgment declaring that it has the primary obligation to defend and indemnify Chase Manhattan Automotive Finance Corp., s/h/a Chase Auto Finance Group and the defendant Lizabeth M. Wolkoff pursuant to its policy terms; (2), as limited its brief, from so much of an order of the same court dated January 13, 2006, as, upon reargument, adhered to the original determination; and (3) from a judgment of the same court dated March 29, 2006, which declared that it has the primary obligation to defend and indemnify the defendant third-party plaintiff Chase Manhattan Automotive Finance Corp., s/h/a Chase Auto Finance Group, and the defendant Lizabeth M. Wolkoff under its policy of insurance. The notice of appeal from the order dated August 12, 2005, is deemed to also 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; and it is further,

ORDERED that one bill of costs is awarded to the defendant third-party plaintiff, Chase Manhattan Automotive Finance Corp., s/h/a Chase Auto Finance Group.

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

Pursuant to Vehicle and Traffic Law § 388(4), all insurance policies must contain a provision "guaranteeing indemnity against liability arising from permissive operation of the owner's vehicle" (see Progressive Cas. Ins. Co. v Baker, 290 AD2d 676; see also 11 NYCRR 60-1.1[a]). Here, the lessee of the vehicle in question procured the mandatory insurance from the third-party defendant as required by statute. The lessee's procurement of insurance was also in compliance with the vehicle lease agreement, which required the lessee to maintain primary insurance coverage for the subject vehicle and to name the lessor, the defendant third-party plaintiff, as an additional insured under the policy. The lessor's insurance coverage provided for excess insurance coverage over the primary insurance required of the lessee pursuant to the lease terms and was contingent on the failure of that primary coverage. Contrary to the third-party defendant's contentions, the lessor was not required to maintain primary insurance coverage for the subject vehicle, since under the circumstances, the lessor's policy of insurance provides "the assurance that a party injured by the negligent operation of a motor vehicle has recourse to a financially responsible defendant" for the $25,000 minimum amount as mandated by statute (Royal Indem. Co. v Providence Washington Ins. Co., 92 NY2d 653, 658 [internal quotation marks omitted]).

 


In re Tulia Caceres v. MVAIC

 

Connors & Connors, P.C., Staten Island (Robert J. Pfuhler of
counsel), for appellant.
Michael M. Goldberg, New York, for respondent.

Order and judgment (one paper), Supreme Court, New York County (Richard F. Braun, J.), entered August 16, 2005, which granted the petition for leave to bring an action against respondent, unanimously reversed, on the law, without costs, the order and judgment vacated and the matter remanded for an evidentiary hearing.

Where, as here, a question exists as to whether an accident report was timely filed pursuant to Insurance Law § 5208(2)(A), "and the issue cannot be resolved without a determination of the credibility of [the petitioner]," an evidentiary hearing is appropriate (Country Wide Ins. Co. v Russo, 201 AD2d 368, 370-371 [1994]). Although respondent did not answer the petition pursuant to CPLR 402, the pleading omission should have been disregarded since respondent's affirmation opposing the relief sought by petitioner challenged petitioner's assertion that she
had satisfied the requirements of Insurance Law § 5218 (see CPLR 2001). Under the circumstances, the matter should have been set down for a hearing pursuant to CPLR 410.

In the Matter of General Assurance Company v. Garcia

 

Kenneth Adler, Melville, N.Y., for appellant.
Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl
F. Korman, and Stuart M. Bodoff of
counsel), for additional respondent-
respondent State Farm Mutual
Automobile Insurance Company.
 

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay the arbitration of uninsured motorist claims, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Conway, Ct. Atty. Ref.), entered December 22, 2005, which, after a hearing, denied that branch of the petition which was to permanently stay the arbitration and directed the petitioner to proceed to arbitration.

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

State Farm Automobile Mutual Insurance Company demonstrated that it met the requirements set forth in Thrasher v United States Liab. Ins. Co. (19 NY2d 159, 168-169) (see Matter of Empire Mut. Ins. Co. [Stroud and Boston Old Colony Ins. Co.], 36 NY2d 719, 721) to disclaim coverage on the ground of lack of cooperation of its insured, Albeiro Rivera (see Matter of Continental Ins. Co. v Lulanaj, 33 AD3d 614; Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605). Accordingly, Rivera's vehicle was uninsured and, as such, the Supreme Court properly denied that branch of the petition which was to permanently stay the arbitration of the claims for uninsured motorist benefits and directed the petitioner to proceed to arbitration. 

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

 

Only Natural, Inc. v. Realm National Insurance Company

 

Kenney Shelton Liptak & Nowak, LLP, Buffalo, N.Y. (Timothy E.
Delahunt of counsel), for appellant Realm National Insurance
Company.
Hodgson Russ, LLP, Buffalo, N.Y. (Patrick M. Tomovic and
Ryan K. Cummings of counsel), for
appellant Scottsdale Insurance
Company.
Taddonio & Heed, P.C., Mineola, N.Y. (John T. Heed of
counsel), for respondent.
 

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff is entitled to be reimbursed by the defendants for its attorney's fees and costs in an underlying action entitled Body Systems Technology v Tree of Life, commenced in the United States District Court for the Middle District of Florida under Docket No. 6:01-CV 1166-021-19 KRS, the defendants separately appeal from a judgment of the Supreme Court, Nassau County (Lally, J.), entered September 23, 2004, which, upon an order of the same court (Skelos, J.), dated April 23, 2004, granting the plaintiff's motion for summary judgment declaring that it was entitled to be reimbursed by the defendants for its attorney's fees and costs in the underlying action, and after a hearing, is in favor of the plaintiff and against them in the principal sum of $104,370.74.

ORDERED that the judgment is reversed, on the law, with costs, the plaintiff's motion for summary judgment is denied, upon searching the record, summary judgment is awarded to the defendants, it is declared that the plaintiff is not entitled to be reimbursed for its attorney's fees and costs in the underlying action entitled Body Systems Technology v Tree of Life, commenced in the United States District Court for the Middle District of Florida under Docket No. 6:01-CV1166-021-19 KRS, and the order dated April 23, 2004, is modified accordingly.

In 2001 the plaintiff obtained an insurance policy covering, inter alia, advertising injury liability, from each of the defendants. The policy issued by the defendant Realm National Insurance Company (hereinafter Realm) was in effect from April 1, 2001, through April 1, 2002. The policy the plaintiff obtained from the defendant Scottsdale Insurance Company (hereinafter Scottsdale) was in effect from September 24, 2001, through September 24, 2002. Both policies contained certain exclusions, providing, among other things, that there would be no coverage for advertising injury liability if the injury arose "out of oral or written publication of material whose first publication took place before the beginning of the policy period." Each policy also contained certain notice provisions requiring the plaintiff to notify Realm and Scottsdale as soon as was practicable of an occurrence or offense which might result in a claim. The plaintiff was also required to immediately send Realm and Scottsdale any legal papers it received in connection with a lawsuit.

On October 15, 2001, the plaintiff was served with the summons and complaint in the underlying action entitled Body Systems Technology v Tree of Life (hereinafter the underlying action). On November 27, 2001, an order was entered in the underlying action granting the motion of Body Systems Technology for leave to enter a default judgment against the plaintiff. The underlying action was subsequently settled without any monetary compensation being paid by the plaintiff.

The plaintiff notified its insurance broker of the underlying action on or about December 21, 2001. Realm received its first notice of this claim, apparently by way of the plaintiff's insurance broker, on January 2, 2002. In response, Realm sent a letter dated January 3, 2002, stating that it appeared that the plaintiff had failed to give it timely notice of the occurrence and that the occurrence might not be covered under the policy. By letter dated February 6, 2002, Realm disclaimed coverage solely on the ground that the plaintiff failed to give it timely notice of the underlying action.

The plaintiff notified Scottsdale of the underlying action by a telephone call on January 8, 2002. By letter dated February 15, 2002, Scottsdale disclaimed coverage on the ground that this was not an occurrence within its policy's definition of "advertising injury" coverage provided by the policy. Further, assuming this claim came within the definition of advertising injury, Scottsdale also disclaimed coverage on the ground that the policy excludes an advertising injury where "first publication took place before the beginning of the policy period." By letter dated January 17, 2003, Scottsdale reiterated its disclaimer of coverage based upon the grounds set forth in its letter of February 15, 2002. It also asserted additional grounds for disclaiming including, inter alia, that the plaintiff "breached the written notice . . . provisions in the Scottsdale insurance contract."

Thereafter, the plaintiff commenced the instant action and moved for summary judgment declaring that it was entitled to be reimbursed by the defendants for its attorney's fees and costs in the underlying action. Realm and Scottsdale opposed, contending, inter alia, that they had properly disclaimed coverage based upon the plaintiff's late notice of the occurrence to them. By order dated April 23, 2004, the Supreme Court granted the plaintiff's motion for summary judgment declaring that it was entitled to be reimbursed by the defendants for its attorney's fees and costs in the underlying action. The Supreme Court found, among other things, that the disclaimers were ineffective as a matter of law, as they were late and there was no explanation for the delays in disclaiming, and referred the matter for a hearing on the amount due the plaintiff as reimbursement for its attorney's fee and costs in the underlying action. After the hearing, a judgment was entered in favor of the plaintiff and against the defendants in the principal sum of $104,370.74. We reverse.

This matter does not involve a claim for death or bodily injury (see Insurance Law § 3420[d]). Therefore, contrary to the Supreme Court's determination, the unexplained failure of Realm and Scottsdale to promptly disclaim on the ground of untimely notification does not automatically estop them from relying upon such a disclaimer. Rather, reliance upon the untimely disclaimers here would only be estopped upon a showing of prejudice to the insured due to the delay. That is, that "the defendant's alleged delay in disclaiming liability based on an exclusion in the insurance policy" (Scappatura v Allstate Ins. Co., 6 AD3d 692) "prejudiced the rights of the insured" (O'Dowd v American Sure. Co. Of N.Y., 3 NY2d 347, 355). Since the record reveals no such prejudice nor is any such prejudice alleged by the plaintiff, the disclaimers were effective and the Supreme Court should not have found them to be meritless and should not have granted the plaintiff's motion for summary judgment.

Furthermore, upon searching the record (see CPLR 3212[b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110), we find that Realm and Scottsdale were entitled to summary judgment in their favor. It is undisputed that the plaintiff delayed more than two months before first notifying either Realm or Scottsdale that it had been served with papers in the underlying action. Such a lengthy unexplained delay relieved Realm and Scottsdale of their duty to defend it (see e.g. Safer v Government Empls. Ins. Co., 254 AD2d 344, 344-345; Matter of Government Empls. Ins. Co. v Elman, 40 AD2d 994). Since the record reveals no explanation for the delay, nor did the plaintiff offer one in its papers, Realm and Scottsdale were entitled to rely on their disclaimers and be relieved of any duty towards the plaintiff in connection with the underlying action (see Scappatura v Allstate Ins. Co., supra; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

In light of this determination, we need not reach the parties' remaining contentions.

Physicians' Reciprocal Insurers v. Giugliano

 

James W. Tuffin, Manhasset, N.Y. (Gabriel Mignella of counsel),
for appellant.
Law Office of Mitchell J. Devack, PLLC, East Meadow, N.Y.,
for respondent James E. Giugliano.
 

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant James E. Giugliano, D.O., in an underlying action entitled Dupree v Giugliano, pending in the Supreme Court, Suffolk County, under Index No. 19557/04, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated October 31, 2005, which denied its motion for summary judgment declaring that it is not obligated to defend or indemnify the defendant James E. Giugliano, D.O., in the underlying action and granted the cross motion of the defendant James E. Giugliano, D.O., for partial summary judgment declaring that the plaintiff is obligated to defend him in the underlying action.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment declaring that it is not obligated to defend or indemnify the defendant James E. Giugliano, D.O., in the underlying action entitled Dupree v Giugliano, pending in Supreme Court, Suffolk County, under Index No., 19557/04, is granted, the cross motion of the defendant James E. Giugliano, D.O., for partial summary judgment declaring that the plaintiff is obligated to defend him in the underlying action is denied, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment.

The plaintiff, Physicians' Reciprocal Insurers (hereinafter PRI), issued a primary and an excess medical practice professional liability insurance policy to the defendant James E. Giugliano, D.O. (hereinafter Dr. Giugliano). While each of these policies states that PRI will pay damages and defend the insured for claims that arise from rendering or failing to render professional services, each of these policies excludes from coverage, inter alia, "[a]ny CLAIM which results from sexual intimacy, sexual molestation, sexual harassment, sexual exploitation or sexual assault."

On August 13, 2004, the defendant Kristin Kahkonen Dupree (hereinafter Dupree) commenced an action against Dr. Giugliano (hereinafter the Dupree action), alleging that she was Dr. Giugliano's patient, and that he breached his duty of reasonable care to her by, inter alia, engaging in a sexual relationship with her from May 2001 to March 2002 while treating her for depression. PRI thereafter disclaimed any obligation to defend or indemnify Dr. Giugliano in connection with the Dupree action. By order dated January 20, 2005, the Supreme Court dismissed Dupree's complaint, without prejudice, on the ground that it could not ascertain from the face of the complaint whether the cause of action was one alleging negligence or intentional conduct.

Dupree subsequently served an amended complaint (hereinafter the amended complaint) against Dr. Giugliano, alleging as a first cause of action that he acted negligently by engaging in sexual contact with her while he was treating her for depression. As a second cause of action, she alleged that the presence of aggravating factors rendered Dr. Giugliano's actions reckless. By order dated July 25, 2005, the Supreme Court denied Dr. Giugliano's motion to dismiss the amended complaint in the Dupree action, finding that Dupree had timely commenced that action against Dr. Giugliano.

On May 16, 2005, PRI commenced the instant action against Dr. Giugliano and Dupree, seeking a judgment declaring, inter alia, that it was not obligated to defend or indemnify Dr. Giugliano in the underlying Dupree action because the claims asserted in that action were expressly excluded from coverage under the terms of the policy and excess policy. PRI moved for summary judgment on its cause of action for declaratory relief. Dr. Giugliano cross-moved, inter alia, for partial summary judgment declaring that, at a minium, PRI had a duty to defend him in the underlying Dupree action.

The Supreme Court denied PRI's motion "in all respects," with leave to renew after completion of discovery. The court also granted Dr. Giugliano's cross motion for partial summary judgment "insofar as PRI has a duty to defend unless and until the undersigned rules otherwise should plaintiff renew its application." We reverse.

PRI demonstrated its entitlement to judgment as a matter of law on the issue of whether it had a duty to defend or indemnify Dr. Giugliano (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). It is well established that "[t]he duty of an insurer to defend its insured arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim" (Physicians' Reciprocal Insurers v Loeb, 291 AD2d 541, 542), or whenever the insurer "has actual knowledge of facts establishing a reasonable possibility of coverage" (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 67). Nonetheless, "an insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45; see Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652).

Here, PRI sustained its burden of demonstrating that the allegations of the amended complaint in the Dupree action "cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation" (International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325; see Physicians' Reciprocal Insurers v Loeb, supra at 542). Dupree's amended complaint alleged solely that Dr. Giugliano acted negligently by engaging in sexual contact with her, and did not indicate any misconduct by Dr. Giugliano beyond this alleged sexual contact. The insurance policies issued by PRI to Dr. Giugliano clearly exclude "coverage for any claim that results from sexual intimacy, sexual molestation, sexual harassment, sexual exploitation, or sexual assault, as well as willful, fraudulent, or malicious civil or criminal acts, and claims of false imprisonment" (Physicians' Reciprocal Insurers v Loeb, supra at 544; see Physicians' Reciprocal Insurers v Blank, 258 AD2d 573, 573-574). Accordingly, PRI established, prima facie, that it has no duty to defend Dr. Giugliano because the allegations within the four corners of the amended complaint in the Dupree action did not potentially give rise to a covered claim (see Fitzpatrick v American Honda Motor Co., supra at 65-67; Physicians' Reciprocal Insurers v Loeb, supra at 542).

In opposition, Dr. Giugliano failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). Dr. Giugliano claims that the complaint could be read as alleging that the initial diagnosis was incorrect as to the severity of Dupree's depression, so that the prescribed course of treatment was ineffective. Alternatively, Dr. Giugliano claims that a reasonable reading of the amended complaint suggests that while the diagnosis was correct, Dupree had an adverse reaction to the particular combination of drugs that was prescribed, as a result of which her condition worsened. Dr. Giugliano finally claims that another reasonable reading of the amended complaint is that the medications were simply ineffective either in that particular combination, or in the particular dosages prescribed, and that a failure to note this and to change her medication led to a worsening of her condition.

These interpretations of the amended complaint in the Dupree action are contradicted by a plain reading of the amended complaint, in which every allegation of misconduct relates to the alleged sexual contact between Dr. Giugliano and Dupree. In any event, Dr. Giugliano's arguments constitute mere speculation insufficient to raise a triable issue of fact (see Platt v Wolman, 29 AD3d 663).

Dr. Giugliano's citations to Chung v Physicians Reciprocal Insurers (221 AD2d 907), and Snyder v National Union Fire Ins. Co. (688 F Supp 932), are unavailing. Those cases stand for the proposition that an insurance company has a duty to defend a doctor notwithstanding a clause excluding coverage for sexual abuse when the complainant alleges that the doctor committed acts of medical malpractice separate and apart from the alleged sexual abuse (see Snyder v National Union Fire Co., supra at 936). Here, by contrast, Dupree has not alleged that Dr. Giugliano has committed any acts of medical malpractice separate and apart from the alleged sexual contact between Dr. Giugliano and her.

Accordingly, the Supreme Court erred in denying PRI's motion for summary judgment declaring that it is not obligated to defend or indemnify Dr. Giugliano in the underlying action entitled Dupree v Giugliano, pending in the Supreme Court, Suffolk County, under Index No. 19557/04, and in granting Dr. Giugliano's cross motion for partial summary judgment declaring that PRI is obligated to defend him in connection with that action.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that PRI is not obligated to defend or indemnify Dr. Giugliano in the underlying action entitled Dupree v Giugliano, pending in Supreme Court, Suffolk County, under Index No. 19557/04 (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: