Coverage Pointers - Volume VIII, No. 18

Dear Coverage Pointers Subscribers:

 

            Neither snow nor rain nor heat nor gloom of night nor nasty flu stays this courier from the swift completion of his appointed rounds of delivering Coverage Pointers into your mailbox on alternate Fridays.  I know you're curious. You've seen a variation of this quotation carved into US Post Office building cornice in midtown Manhattan.  Where did it come from?  The original quote was actually "Neither snow, nor rain, nor heat, nor gloom of night stays these courageous couriers from the swift completion of their appointed rounds" and was said about 2500 years ago by the Greek historian, Herodotus. He said this adage during the war between the Greeks and Persians about 500 B.C. in reference to the Persian mounted postal couriers whom he observed and held in high esteem. I guess I feel close to Herodotus, known as the Father of History.  Maybe it's "mail bonding."

 

            Today's issue of Coverage Pointers brings us news that the Second Department has asked the Court of Appeals to review its decision in Rafellini, the decision which held that there was no requirement to prove a serious injury when making a claim for underinsured motorists benefits.  Regular readers of CP may recall that the Appellate Division decision led to a special edition of this publication back in October, your editors being so distraught with the reasoning.  Perhaps the Court of Appeals will put the lower courts back on the straight and narrow.

 

            For all of you late notice aficionados, there is a well-reasoned decision where an insurer's disclaimer or late notice and lack of cooperation, two years after first being given notice of the incident, was upheld, when the insured was hiding the truth from the carrier.  Once the insurer learned that the insured (a) did in fact know of the accident right away and (b) wasn't being truthful during the investigative phase, it promptly denied coverage and that denial was upheld.

 

            From Audrey Seeley, the Queen of No Fault, we bring you this message:

 

This edition brings yet another trend that we spotted.  We are seeing in the Appellate Division, Second Department, Appellate Term a number of recent cases that deny plaintiff's summary judgment motion for lack of demonstrating a prima facie case.  The plaintiffs are submitting conclusory affidavits from officers that lack any personal knowledge of practices and procedures of keeping business records.  Likewise, there are also a few decisions from the same court finding that insurers are failing to submit sufficient evidence to demonstrate noncompliance with a scheduled IME.  In those cases, there is no evidence that the eligible injured person failed to appear for the IME.

 

In the arbitration world there is one interesting award regarding a chiropractor whose claim was denied.  The interesting part is the arbitrator's comment about questioning the motivation for the testing performed and the medical necessity letter being boiler plate.  We request that if you have any awards regarding this particular provider or chiropractor that you share them with us.  This is one that we should keep an eye on.

 

Thanks Audrey.

 

            Some scheduling notes:

 

• For claims professionals:  FDCC Litigation Management College and Graduate Program:  June 17 - 21, 2007. Emory University.  Most comprehensive and most reasonably priced claims training programs available anywhere.  Click here for more information or call me.
• For law firms:  Fifth Law Firm Management Conference, April 18-20, 2007, Embassy Suites O'Hare, Chicago, Illinois.  Click here for more information or call me.

 

Today's highlights:

 

• Court of Appeals to Review Rafellini: Underinsured Coverage (SUM) -- Intermediate Appellate Court Strikes Down Necessity to Establish Serious Injury to Qualify for SUM Recovery.  Thousands Cheer
• Can't Tell Players Without Scorecard or Coverage Without Policy
• No Cause of Action Exists in Tort Against Property Carrier for Bad Faith
• Direct Action Against Carrier Only Permits Recovery to the Extent of Coverage Available Under Policy
• Misrepresentation by Insured in Application for Property Insurance Leads to Loss of Coverage.  Agent's Negligence Precludes its Application for Contribution or Indemnity
  Can't Eat Your Cake and Have it Too; Liability Carrier Who Assumes Defense Cannot Subrogate Against Insured's Agent who May Have Provided Late Notice
• Property Insurer Had Right to Rescind for Material Misrepresentations in Application.  However, it Chose to Cancel Prospectively and Thus is Responsible for Loss Which Occurred Before Cancellation Became Effective
• No Occurrence, No Need for Disclaimer
• The Truth Comes Out About the Insured's Misrepresentations Two Years After Having Given Notice and then Carrier Issues Prompt Disclaimer, Insurer's Denial is Upheld
• Court Correctly Separates Universe of Tort and Coverage; Untimeliness of Disclaimer on Permissive Use Does Not Preclude Tort Defense of Non-Permissive Use
• Crane and Operator Supply Company Not Negligent Since Crane was Not Defective and Operator Under Control of Another.  Accordingly, Company Allowed Indemnity Under Agreement.
• Class Action on Flexible Premium Case Certified
• Employment Exclusion Operated to Deny Coverage to Additional Insured for Claim of Injury by Employee of Named Insured
• State Insurance Fund Not Subject to Direct Action for Recovery of Unpaid Judgment
• Franchisees Not Liable for Unpaid Deductibles
   

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

 

 

• Submission of Unaffirmed Physician's Report by Plaintiff Clinches Summary Judgment
• But Don't Just Take Plaintiff's Word for It: Check the Medical Records!
• Plaintiff's Plethora of Activities Punctures Defendant's Summary Judgment Motion

 

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]

 

 

• Plaintiff's officer's affidavit was insufficient to establish personal knowledge of Plaintiff's practices and procedures to lay a sufficient foundation for admission of records as business records.
• Plaintiff's officer's affidavit stated in a conclusory manner that the documents were business records.
• Plaintiff's officer's affidavit insufficient for admission of documents as business records as no demonstration of personal knowledge of Plaintiff's practices and procedures.
• Yet, again Plaintiff's officer's affidavit failed to demonstrate personal knowledge of practices and procedures and insufficient to permit admission of documents as business records.
• Again, affidavit of officer failed to demonstrate personal knowledge of Plaintiff's practices and procedures.  Therefore, documents were inadmissible as business records.
• Affidavit from Plaintiff's employee conclusory in stating documents attached were Plaintiff's business records.  The affidavit did not establish a personal knowledge of Plaintiff's practices and procedures. 
• Is It Six Years Or Three Years To Bring The Action For No-Fault Benefits?
• Lost Wages Owed As Applicant Did Not Abandon His Job.
• Chiropractor's Motivation for Conducting EMG/NCV Testing Questioned.
• Billing Forms, Certified Mail Receipts, and Third-Party Biller Affidavit Results In Summary Judgment For Plaintiff.

Love hearing from you. 

Dan

 

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

3/6/07              Raffellini v. State Farm Mutual Automobile Insurance Company
New York State Court of Appeals
Court of Appeals to Review Rafellini : Underinsured Coverage (SUM) -- Intermediate Appellate Court Strikes Down Necessity to Establish Serious Injury to Qualify for SUM Recovery.  Thousand Cheer
In a special – I am cranky – issue published on 10/24/06 , we reported on the sadly misguided decision of the Second Department in Raffellini.  In summary, we reported in a lengthy issue that:       

This one is a show stopper.  Halloween has come early in the Second Department. In summary, the Appellate Division has held that the portion of Insurance Department regulation (35-D) and the mandatory policy language contained in that regulation that requires the SUM (underinsured) claimant prove a serious injury in order to recover those benefits has been found in violation of the Insurance Law.  In other words, the Court has held that a SUM claimant who has settled his or her case with the other car’s insurer need not prove he or she has sustained a serious injury under the No Fault law when prosecuting the claim for SUM benefits.

You can find the special issue here

We said then:

The Future?  Appeal to the Court of Appeals and/or Retroactive Calculation

Since this was a unanimous decision at the Appellate Division level, an appeal to the Court of Appeals is not permitted as a matter of right, but only by permission.  If State Farm decides to seek further judicial review, surely likely, amicus briefs by other carriers may well be solicited.  In the meantime, what will happen to the many, many cases that have been decided by courts and arbitrators in which benefits were denied because of a lack of a serious injury? 

Word has come down that the Second Department has granted leave to appeal of its order to the Court of Appeals, the only way that review can be obtained.  Thank goodness.  We simply cannot see the high Court, in good conscience, upholding this decision.

Attention carriers:  Time to consider amicus briefs.

3/8/07              Chubb National Insurance Company v Platinum Customcraft Corp.

Appellate Division, Second Department
Can’t Tell Players Without Scorecard or Coverage Without Policy
Application to dismiss subrogation action which was commenced by property carrier against jewelry.  Defendant argued that plaintiff had no right of subrogation because only itemized jewelry was insured under terms of policy, that this jewelry was not itemized and therefore, if insurer made any payment, it did so as a volunteer.  However, defendant did not provide the court with a copy of the policy, but only a “Coverage Summary Renewal.”  Without the policy before the court, court cannot determine whether or not coverage exists. Motion denied.

3/6/07              Paterra v. Nationwide Mutual Fire Insurance Co.
Appellate Division, Second Department
No Cause of Action Exists in Tort Against Property Carrier for Bad Faith
The insurer established that the two-year limitation period set forth in the insurance policy had expired before the action was commenced. The plaintiffs were able to establish that the insurer was estopped from pleading the statute of limitations because the plaintiff was induced by fraud, misrepresentations, or deception to refrain from filing a timely action.

Based on those facts, plaintiffs then sought to recover extra-contractual damages alleging that the insurer’s conduct amounted to bad faith.  However, there is no separate tort for bad faith refusal to comply with an insurance contract; this claim should have been dismissed as well as a claim for punitive damages

3/6/07              Smith v. Allstate Insurance Company
Appellate Division, Second Department
Direct Action Against Carrier Only Permits Recovery to the Extent of Coverage Available Under Policy
Insurance Law § 3420(a)(2) permits a plaintiff who holds an unsatisfied judgment against an insured individual to maintain an action against the insured's carrier to collect the judgment. An action pursuant to § 3420(a) (2) can be commenced following a 30-day waiting period after service upon the insurance company of notice of entry of the judgment. However, the statute does not permit the plaintiff's recovery to exceed "the amount of the applicable limit of coverage" under the subject insurance.

3/6/07              Bleecker Street Health & Beauty Aids, Inc., v. Granite State Ins. Co.
Appellate Division, First Department
Misrepresentation by Insured in Application for Property Insurance Leads to Loss of Coverage.  Agent’s Negligence Precludes its Application for Contribution or Indemnity.
Insured misrepresented that there was no restaurant that had a deep fryer in the building.  Insurer presented proof that underwriter "always" denied an application if there was a deep fryer or restaurant above the premises of the proposed insured. Agent, who should have reviewed the application for accuracy, can not seek contribution against others.

3/1/07              Dezer Properties II, LLC v. Kaye Insurance Associates, Inc.

Appellate Division, First Department
Can’t Eat Your Cake and Have it Too; Liability Carrier Who Assumes Defense Cannot Subrogate Against Insured’s Agent who May Have Provided Late Notice

Hartford brings a subrogation action in the name of its insured, Dezer against Kaye, Dezer’s insurance broker, for mishandling of claim.  Hartford, speaking in the voice of its insured, alleges that Kaye failed to timely notify Hartford of personal injury claim and as a result, a default judgment was entered against Dezer.  However, despite the late notice to Hartford, Hartford defended Dezer and paid off the judgment entered against Dezer.

The Court dismissed the lawsuit.  Dezer suffered no harm, since Hartford paid off the claim.  Accordingly, Dezer has no claim.  Hartford, in its own right, has no claim against Kaye since Kaye owed Hartford no duty.  In any event, even if Kaye was negligent and the default judgment was Kaye’s fault, Hartford could not pursue a subrogation claim against Kaye because Kaye was not a party responsible for the loss.

3/1/07              Stein v. Security Mutual Ins. Co.
Appellate Division, Third Department
Property Insurer Had Right to Rescind for Material Misrepresentations in Application.  However, it Chose to Cancel Prospectively and Thus is Responsible for Loss Which Occurred Before Cancellation Became Effective.
Agent submitted application for homeowners insurance which gave a false claims history.  A month later, after insurer realized material misrepresentations, carrier decided to cancel policy prospectively, rather than void policy retroactively to date of policy’s issuance.  Before the cancellation date, insured suffered property loss.  Carrier denied loss and then sent out notice declaring policy was void and returned premium. Dispute also between insured and agent as to which party responsible for misrepresentations

Sworn statements by agent and carrier’s employee and established that carrier would not have issued the insurance policy at issue if the application had the prior claims.

Because the application for insurance contained material misrepresentations, defendant could have rescinded plaintiffs' policy, rendering it void ab initio but it did not do so, instead choosing to cancel prospectively. The policy was in full force until the cancellation notice's stated effective date.

Dispute between agent and insured, therefore, is not important.

 

2/27/07            State Farm Fire & Casualty Company v. Horton

Appellate Division, Second Department

No Occurrence, No Need for Disclaimer
Not a lot of facts provided in the opinion.  In what appears to be a child sexual molestation case, where insurer undertook defense of insured under reservation of rights and commenced declaratory judgment action.  Since the court found that the activity of the insured was intentional and did not constitute and occurrence, there was no need for a timely disclaimer. 

2/27/07            Sandy Creek Central School District v. United National Insurance Co. Appellate Division, Second Department
Liability Carrier has Broad Duty to Defend Owner-Additional Insured for Claims Which May Arise out of Named Insured - General Contractor’s Work
Sandy Creek Central School District (District), as owner, contracted with nonparty Murnane Building Contractors, Inc. (Murnane), as general contractor, for the construction of additions and alterations to a school. Murnane subcontracted the drywall work to the defendant Schalk. The defendant United National Insurance Company (hereinafter United) issued Schalk a comprehensive general liability insurance policy, which named the District and Murnane as additional insureds, pursuant to the blanket additional insured endorsement, but only with respect to "liability for bodily injury' or property damage' arising solely out of [Schalk’s] work' on behalf of the [District].""Your work" was defined as "[w]ork or operations performed by you or on your behalf; and [m]aterials, parts or equipment furnished in connection with such work or operations."

Scranton, a Schalk employee, commenced a personal injury action against the District, arising from injuries allegedly sustained when he slipped and fell on ice in the parking lot of the construction site while heading toward his vehicle on his lunch break. The District and its insurer, NYSIR commenced this action seeking a declaration of their rights under the insurance policy issued by United to Schalk.

United was obligated to defend the District in the underlying action, and to reimburse the NYSIR for defense costs already incurred in its defense. The duty to defend is broader than the duty to indemnify, and "arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy."  It is premature to determine whether there is a duty to indemnify.

2/27/07            Sirius America Insurance Company v. TGC Construction Corp.
Appellate Division, Second Department
When the Truth Comes Out About the Insured’s Misrepresentations Two Years After Having Given Notice and then Carrier Issues Prompt Disclaimer, Insurer’s Denial is Upheld
On March 8, 2002, Matthius sustained personal injuries while employed by a subcontractor at a construction site. In October 2002 Matthius commenced the underlying personal injury action to recover damages against, among others, TGC Construction Corp. (hereinafter TGC). The plaintiff Sirius America Insurance Company, TGC's insurance carrier, and its liability claims examiner, the plaintiff UTC Risk Management Services, Inc. (hereinafter collectively Sirius), first became aware of Matthius's accident on October 29, 2002, when TGC sent it a copy of the complaint in the underlying action. During a November 5, 2002, meeting, TGC's sole shareholder, the defendant Giovanni Culotta, a/k/a John Culotta, stated that TGC was not involved with the site, and for that reason and without reserving its right to disclaim coverage, Sirius agreed to defend and indemnify TGC in the underlying action. Sirius subsequently learned that a TGC sign was at the site, and pursuant to further inquiry, on April 29, 2003, Culotta signed a statement confirming that TGC was not involved with the project.

 

Culotta was deposed on July 22, 2004, during which he testified TGC became the site's project manager, responsible for hiring and supervising the general contractor and the subcontractors and that he had learned about the accident on the date it occurred. On August 13, 2004, Sirius learned of Culotta's above deposition testimony. By letter dated September 1, 2004, Sirius informed TGC that it was disclaiming coverage because TGC breached the insurance policy's cooperation clause by making repeated misrepresentations about its role at the site, and for untimely notice of the occurrence. Sirius then commenced the instant litigation.

Sirius’ disclaimer was timely and upheld.  It did not know of the truth about the defendant’s knowledge of the accident and responsibility until August 13, 2004 and disclaimed promptly two weeks later. Further, Sirius established that TGC repeatedly misrepresented its role as the site's project manager for at least one and one-half years, thereby breaching the insurance policy's cooperation clause.

2/27/07            McDonald v. Rose
Appellate Division, Second Department
Court Correctly Separates Universe of Tort and Coverage; Untimeliness of Disclaimer on Permissive Use Does Not Preclude Tort Defense of Non-Permissive Use
On December 5, 2001, the vehicle owned by the Rose and insured by New York Central Mutual, had been reported stolen. Eleven days later, on December 16, 2001, an automobile owned and operated by the plaintiff Andrew McDonald was involved in an accident with the Rose car. The driver of the stole car left the scene.  Six months later, NY Central disclaimed coverage on the ground of non-permissive use (hereinafter the disclaimer).

In an earlier proceeding, the injured party sought uninsured motorist’s benefits from his carrier, Liberty Mutual.  Liberty sought to stay arbitration on the grounds that the NY Central disclaimer was untimely in a separate proceeding and the Court agreed with Liberty that the disclaimer was untimely.

Now in this tort action against the defendant, the defendant interposed an answer in which she raised the affirmative defense of non-permissive use. The plaintiffs moved for summary judgment dismissing the affirmative defense of non-permissive use arguing that the issue of non-permissive use was already determined in the proceeding to permanently stay arbitration. The defendant cross-moved, arguing that there was uncontroverted proof the car was stolen.

The court held that the untimeliness of the disclaimer (in the universe of coverage) did not resolve the issue of permission (in the universe of tort).  The defendant established her entitlement to summary judgment through the documentary evidence she proffered which consisted of the report of theft to the police on December 5, 2001, her affidavit of theft to New York Central, the accident report indicating that the accident occurred on December 16, 2001, and that the driver of her vehicle fled the scene, and the sworn affidavit of her husband, who had borrowed the vehicle on the day it was stolen and asserted facts relating to the theft.

Editors Note: Great example of differences between universe of tort and coverage.

2/27/07            Mahoney v. Turner Construction Co.
Appellate Division, First Department
Crane and Operator Supply Company Not Negligent Since Crane was Not Defective and Operator Under Control of Another.  Accordingly, Company Allowed Indemnity Under Agreement.

Mahoney worked for Heritage Air Systems and was assigned to work on HVAC system of building under construction. Heritage contracted with Williams with Williams to provide project crane for two days at cost of $12,000. Williams concedes that it rented the crane from New York Crane. Mahoney and co-workers were assisting the crane operator in rigging the crane when he climbed on the boom to insert linchpin.  Crane moved and he fell, suffering injuries.

 

Tobin, the crane operator, was supplied by New York Crane, paid by Williams, worked under the direction and control of Heritage.  It was undisputed that Tobin was not under New York Crane's direction or control. Under the rental agreement between Williams and New York Crane, Williams assumed responsibility for crane and agreed to hold harmless and indemnify NY Crane for all risks inherent in the use of the crane, whether or not it be claimed or found that such . . . injury resulted in whole or in part from NY Crane's negligence, from the defective condition of the item(s) or from any cause.

 

Mahoney sued the general contractor Turner, and Williams each of whom turned around and sued NY Crane.  NY Crane counterclaimed against Williams, claiming a right to protection under the hold harmless agreement, since, NY Crane argued, it was not negligent.

 

The Appellate Division held that the indemnity agreement was enforceable as there was no showing that the operator had been selected negligently, that a defective or inappropriate crane had been provided, or that any act or omission by New York Crane caused plaintiff's injury. NY Crane has no personnel at the site; nor did it control or direct the operation of the crane.  Accordingly, the agreement was enforceable and did not violate General Obligations Law Section 5-322.1 which prohibits indemnification in construction site cases for one’s own negligence.

Editors Note:  While this is not a coverage decision, it’s such a common issue that comes up in construction litigation (surely, one of the areas that generates much of the NY coverage litany) we thought it would be of interest.

2/27/07            Beller v. William Penn Life Insurance Company of New York
Appellate Division, Second Department
Class Action on Flexible Premium Case Certified
State class action certified with respect to flexible premium life insurance policies where claim is increased premiums without regard to factors contained in “cost of insurance” provisions of policy.

 

2/27/07            Guachichulca v. Laszlo N. Tauber & Associates, LLC
Appellate Division, Second Department
Employment Exclusion Operated to Deny Coverage to Additional Insured for Claim of Injury by Employee of Named Insured
First Mercury Insurance Company issued a general liability insurance policy to Ideal Kitchen), which contained an exclusion for bodily injury to an employee of an insured if the injury occurs in the course of employment. An Ideal employee was injured in the course of his employment and sued the general contractor for the project during which the accident occurred, Venezia Interior. Venezia brought an action against First Mercury, seeking a declaration that First Mercury must defend and indemnify it as a potential additional insured under the policy.

The plain meaning of the employment exclusion was to relieve First Mercury of liability when an insured or additional insured was sued or indemnification was requested for damages arising out of bodily injury to an employee sustained in the course of employment. The insurance provision precluded coverage as to both Ideal and Venezia.

Editors Note: Frankly, your editor was a little surprised by the result here, but we haven’t seen the language of the exclusion. Sometimes, a “separation of insured’s” clause might lead a court to determine that the GC’s status as a non-employer should be considered when applying the exclusion.  However, IF the language exclusion referenced “an insured” the court was reading it to mean “any insured.”

3/1/07              Kenmore-Tonawanda School District v. The State of New York
Appellate Division, First Department
State Insurance Fund Not Subject to Direct Action for Recovery of Unpaid Judgment
Very interesting decision.  Plaintiff took judgment against an insured of the State Insurance Fund and then brought a direct action against the State to recover on the judgment.  Section 3420 of the Insurance Law permits such a direct action, where an injured party recovers against a defendant and the defendant’s carrier refuses to pay the judgment because of a coverage defense.  However, in this case, the Court held that the State Insurance Fund cannot be sued in a direct action because of the provisions of Insurance Law Section 1108 which specifically exempts the State Insurance Fund, a state created insurer, from most licensing and many regulatory requirements.  That section provides, in part:

 

§  1108.  Insurers exempt from licensing and other requirements. The following insurers …shall be exempt from licensing and other requirements imposed by the provisions of [the New York Insurance Law] …to the extent specified below:
…

(c)  The  state  insurance  fund  of  this  state,  except  as  to the   provisions of [several sections without reference to Section 3420.]

Editors Note: This leaves the “declaratory judgment action” as the only way to test a coverage denial by the State Insurance Fund

2/22/07            General Security Prop. & Cas. Co. v. American Fleet Management
Appellate Division, First Department

Franchisees Not Liable for Unpaid Deductibles
Under the clear and unambiguous provisions of the insurance policies and the Deductible Agreement between plaintiffs and defendant American Fleet, the franchisees are not liable for the outstanding deductibles paid by plaintiffs, and any ambiguities in the written agreements should be construed to favor the insured franchisees and against plaintiffs, which drafted the agreements. There is no evidence that the parties, in their course of dealing, intended the franchisees to be liable for deductible reimbursements.

 

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

 

 

3/6/07              Sully v. Kings Luxury, Inc.

Appellate Division, Second Department

Submission of Unaffirmed Physician’s Report by Plaintiff Clinches Summary Judgment

In a short opinion, Appellate Division affirmed lower court’s order granting defendants’ motion for summary judgment. The court held that the defendants met their prima facie burden of establishing that the plaintiff did not sustain a serious injury. In opposition, plaintiff submitted a physician’s report which was unaffirmed and thus, insufficient to raise an issue of fact.

 

2/27/07            Vidor v. Davila

Appellate Division, Second Department

But Don’t Just Take Plaintiff’s Word for It: Check the Medical Records!
Appellate Division reversed lower court’s order denying defendants’ motion for summary judgment as the Court held plaintiff failed to raise a triable issue of fact after defendants had met their prima facie burden. While the affirmation of the injured plaintiff’s treating physician acknowledged for the first time that the injured plaintiff had sustained neck and back injuries as a result of a prior automobile accident, he merely took the injured plaintiff’s word for the fact that those injuries were “minor” and that she was asymptomatic for the approximately four years before the subject accident. There is nothing in the physician’s affirmation to indicate that he reviewed, or attempted to review, any of the medical records from plaintiff’s prior accident. Instead, the only basis for his statement appears to be the medical history related to him by the injured plaintiff. Under these circumstances, the injured plaintiff’s treating physician failed to adequately account for the prior accident and resulting injuries. Thus, this physician’s findings, both in his affirmation and affirmed reports that the injuries to the injured plaintiff’s spine were caused by the subject accident were speculative.

 

2/22/07            Pugh v. De Santis

Appellate Division, Third Department

Plaintiff’s Plethora of Activities Punctures Defendant’s Summary Judgment Motion

In a lengthy opinion, Appellate Division modified lower court’s order granting defendants’ motion for summary judgment. Case stems from defendant rear-ending plaintiff who was stopped and preparing to make a left turn. Defendant later pled guilty to DWAI. Initially, the Court ruled that defendants had met their prima facie burden that plaintiff suffered no serious injury as a result of this accident. In response, plaintiff primarily relied upon the affidavit of her treating physician, internist Donald Merrihew. In response to the evidence that plaintiff’s injuries flowed entirely from an earlier accident, Merrihew submitted an affirmation wherein he stated that he had treated plaintiff for the past eight years and she had never complained about a neck injury prior to the subject accident. He is also familiar with plaintiff’s occupation as a tutor for a special needs child and her home and parenting responsibilities. He explained that plaintiff was unable to work or manage her household following the collision because the pain and limitation of range of motion caused by her muscle spasms.

 

However, with respect to the permanency of plaintiff’s injury and the extent to which her injuries persist, Merrihew admits that her range of motion “has improved significantly since the first year after the motor vehicle accident,” but concludes that “she does not have, nor will she have a full range of motion.” Merrihew’s affirmation, however, does not quantify the extent of plaintiff’s current limitations or provide the results of any recent objective medical data to corroborate his opinion that she remains significantly disabled. Given this evidence, the Court stated the lower court properly granted summary judgment to defendants on 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.

 

The Court reached a different conclusion with respect to the 90/180-day category of serious physical injury. Defendants’ motion papers assert that plaintiff sustained no injury under this category as a result of the subject accident that documentary evidence indicates that plaintiff was able to return to work and remain at work thereafter less than 90 days after the accident. However, the reports authored by defendants’ experts conceding that the 2003 accident aggravated a preexisting condition, combined with Merrihew’s assertion that plaintiff did not complain of any neck pain prior to the 2003 accident, present a question of fact as to whether and to what extent plaintiff's injuries stem from the 2003 accident.

 

Finally, in contrast to the documentary evidence of plaintiff’s medically necessitated absence from work, Merrihew’s affirmation states that plaintiff was not able to return to work at all until near the end of April 2003. Finally, plaintiff’s affidavit submitted in response to defendants’ motion indicates that, following the collision, she was unable to work for approximately three months, could not go grocery shopping for about six months, could not do laundry or cooking for approximately five months, had difficulty sitting to help her children with homework for approximately three months, could not attend her children’s sporting and other activities for approximately three months, and remains unable to mow the lawn, lift weight greater than 15 pounds, perform volunteer work, exercise, or work at a computer for more than 10 minutes at a time. These assertions, combined with Merrihew’s affirmation are sufficient to raise a question of fact as to whether plaintiff suffered a serious injury under the 90/180-day category. In conclusion, the order was modified by reversing defendants’ motion as it relates to the 90/180 category and granting plaintiffs’ cross motion for partial summary judgment on the issue of liability. 

 

 

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. 

 

We Know You LOVE Trends!  Recently there were a slew of cases denying Plaintiff’s summary judgment motion due to conclusory affidavits from Plaintiff’s officers regarding business records.  The other slew of cases grant summary judgment to Plaintiff based upon the insurer’s insufficient affidavits to support non-compliance with a scheduled IME.

 

Here are the cases regarding conclusory affidavits from Plaintiff’s officers:

 

3/5/07              V.S. Medical Services, P.C. a/a/o Ethel Reid v. Allstate Ins. Co.,

                        2007 NYSlipOp 50400(U) (2d Dept. App. Term)

Plaintiff’s officer’s affidavit was insufficient to establish personal knowledge of Plaintiff’s practices and procedures to lay a sufficient foundation for admission of records as business records.

 

3/2/07              Fortune Medical, P.C. a/a/o Cecilia Rodriguez v. Kemper Ins. Co.,

2007 NYSlipOp 50399(U)  (2d Dept.  App. Term)

Plaintiff’s officer’s affidavit stated in a conclusory manner that the documents were business records.

 

2/27/07            Bedford Park Med. Practice, P.C. a/a/o Simon Jimenez v. New York Cent. Mut. Fire Ins. Co., 2007 NYSlipOp 50378(U) (2d Dept. App. Term)

Plaintiff’s officer’s affidavit insufficient for admission of documents as business records as no demonstration of personal knowledge of Plaintiff’s practices and procedures.

 

2/27/07            Mega Supply & Billing, Inc. a/a/o Peter Aguirre v. Clarendon Nat’l Ins. Co.,

                        2007 NYSlipOp 50377(U) (2d Dept. App. Term)

Yet, again Plaintiff’s officer’s affidavit failed to demonstrate personal knowledge of practices and procedures and insufficient to permit admission of documents as business records.

 

2/26/07            First Help Acupuncture, P.C. a/a/o Zach Glot v. Lumbermens Mut. Ins. Co.,

                        2007 NYSlipOp 50365(U) (2d Dept. App. Term)

 

Again, affidavit of officer failed to demonstrate personal knowledge of Plaintiff’s practices and procedures.  Therefore, documents were inadmissible as business records.

2/26/07            Great Wall Acupuncture a/a/o Jean Francois v. New York Cent. Mut. Fire Ins. Co., 2007 NYSlipOp 50364(U) (2d Dept. App. Term)

Affidavit from Plaintiff’s employee conclusory in stating documents attached were Plaintiff’s business records.  The affidavit did not establish a personal knowledge of Plaintiff’s practices and procedures. 

 

Here are the cases regarding the insurer’s failure to demonstrate noncompliance with an IME:

 

3/2/07              Great Wall Acupuncture a/a/o Manuel Delva and Mario Faustin v. Utica Mut. Ins. Co., 2007 NYSlipOp 50389(U) (2d Dept. App. Term)

The insurer claimed that the eligible injured person failed to comply with a scheduled IME resulting in the denial of all no-fault benefits.  The insurer submitted an affidavit from the claims representative and an investigator from Special Investigative Unit in support of the basis for the denial.  However, neither affidavit demonstrated personal knowledge of the mailing of the verification requests or the standard mailing procedures for the insurer.  The Court held that the insurer failed to demonstrate that it mailed an IME notice to the eligible injured person.  Also, there was no affidavit attesting to the eligible injured person’s nonappearance at the scheduled IME.

 

2/14/07            Chi Acupuncture, P.C. a/a/o Mark Klass v. Kemper Auto & Home Ins. Co.,

                        2007 NYSlipOp 50352(U) (2d Dept. App. Term)

 The insurer in support of its position that the eligible injured person failed to comply with a scheduled IME submitted copies of Plaintiff’s proofs of claim, the insurer’s denials, and an affidavit from its no-fault claims examiner which established the insurer’s receipt of the claims and mailing of the denials.  A second affidavit from the company that scheduled the insurer’s IMEs was submitted that sufficiently established the mailing of the IME notices to the eligible injured person.  Yet, the insurer did not submit any evidence that demonstrated the eligible injured person failed to appear for the IME.

 

Here is a case that incorporates both issues:

 

2/16/07            Fair Price Med. Supply Corp. a/a/o Yaheel Reyes v. New York Cent. Mut. Fire Ins. Co., 2007 NYSlipOp 50357(U) (2d Dept. App. Term)

Plaintiff’s summary judgment motion was supported by an insufficient affidavit from an officer with no personal knowledge of Plaintiff’s practices and procedures in keeping business records.  Likewise, Defendant’s, insurers, cross-motion based upon non-compliance with a scheduled IME did not contain an affidavit from an individual with personal knowledge that the eligible injured person failed to appear for the scheduled IME.  Accordingly, both motions were denied.

 

 

 

2/27/07            Mandarino v. Travelers Prop. Cas. Ins. Co., (2d Dept.  2007)

Is It Six Years Or Three Years To Bring The Action For No-Fault Benefits?

Here is the Angle:  In an action to recover first party benefits, the six year statute of limitations will apply as the action is based upon the liability imposed by contract, despite provisions being statutorily mandated.

 

The Analysis:  The Plaintiff commenced this action more than five years after the insurer denied payment of the chiropractic bills.  The insurer cross-moved for summary judgment on the basis that Plaintiff’s action was barred by the three year statute of limitations pursuant to CPLR §214(2) (obligations created by statute).  The Civil Court denied the cross-motion on the ground that the applicable statute of limitations period was six years pursuant to CPLR §213(2) (contractual obligations).  The Appellate Division affirmed.

 

The Court reasoned that where a plaintiff’s action is based on both a contractual liability as well as a liability imposed by statute the longer statute of limitations period will apply.  In this case, the Plaintiff’s action was based upon the terms of the automobile liability insurance contract.  This is despite the fact that the terms of the contract are mandated by statute.  However, the Court relied upon dicta in Gurnee v. Aetna Life & Cas. Co., 55 NY2d 184, to support its conclusion.  In Gurnee, the Court of Appeals recognized in dicta that the six year limitation applies to no-fault actions.

 

2/26/07            In the Matter of the Arbitration between the Applicant and Respondent

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

Lost Wages Owed As Applicant Did Not Abandon His Job.

Here is the Angle:  EIP did not abandon his job based upon testimony of his attempt to contact employer to advise of disability which was confirmed by the employer together with comments to supervisor about accident and associated complaints of pain. 

 

The Analysis:  The Applicant, eligible injured person (“EIP”), challenged the insurer’s denial of lost wages that was based upon the assertion that the EIP was terminated from his employment for reasons other than the June 16, 2006, motor vehicle accident.

 

The EIP was employed as a telephone collections person at the time of the accident.  He continued to work despite complaints of discomfort in order to support his wife and four children.  However, by early August 2006, he experienced increasing dizziness rendering him unable to drive himself to work.  Dr. LaRoche, the EIP’s treating physician, advised him to stay home from work for one week until re-evaluated.

 

The EIP contended that he informed his immediate supervisor of the accident and the problems he was experiencing.  However, the EIP was not able to get through to anyone at work to advise them of Dr. LaRoche taking him out of work for one week.  The EIP finally was able to leave a voice mail message on the Collection Manager’s answering machine which was confirmed by the employer.  The employer enforced its policy of 2 days without calling into the office was considered job abandonment.  On August 11, 2006, the EIP was advised he was terminated from his employment.

 

Arbitrator McCorry found the insurer’s denial inappropriate after hearing the EIP’s testimony.

 

 

2/23/07            In the Matter of the Arbitration between the Applicant and Respondent

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

Chiropractor’s Motivation For Conducting EMG/NCV Testing Questioned.

Here is the Angle:  Mr. Scott Syracuse’s claim for reimbursement for EMG/NCV testing was denied based in part on the Arbitrator concluding that he used a boiler plate letter of medical necessity that was not patient specific.

 

The Analysis:  The Applicant, chiropractor – Mr. Scott Syracuse, sought reimbursement for EMG/NCV testing conducted on the eligible injured person (“EIP”) allegedly due to injuries sustained as a result of a March 24, 2006, motor vehicle accident.  Mr. Syracuse’s records indicated that he initially saw the EIP on May 18, 2007 and diagnosed the EIP with cervical disc displacement.  The care plan called for spinal adjustments of the cervical and thoracic spine as well as mechanical traction and manual trigger point.  The EIP was prescribed conservative management by her treating chiropractor two to three times per week.

 

Interestingly, at the May 18, 2007, visit with Mr. Syracuse and despite the fact that there was no mention of the need for EMG/NCV testing it was conducted.  The treating chiropractor’s records were not provided so it was not clear that this type of testing was recommended.  Arbitrator McCorry further notes:

 

I also found troubling the fact that Dr. Syracuse’s letter of Medical Necessity is a form letter that he appears to use routinely in cases where he performs EMG/NCV testing.  I point out the letter of Medical Necessity is a word for word copy of the letter of Medical Necessity in the Arbitration case #412006034017, awarded by me on 2//22/07 (sic).

 

Editors Note: – the award referenced is an arbitration that I handled and the claim was denied).

 

Arbitrator McCorry also noted that the peer review report conducted by Dr. Jay Weiss, M.D. concluded that the testing was not medically necessary due to the absence of an adequate neurologic examination as well as a sensation assessment.  Dr. Weiss stated “sensory examination is a crucial part of the neurologic examination and EMG/NCV studies should never be performed in lieu of an adequate neurologic examination.”

 

Arbitrator McCorry denied the claim stating, “that failure coupled with the use of a boiler plate letter of Medical Necessity, which did not appear in any way to be patient specific, leads me to question the motivation for the testing.”

 

3/07     New York Presbyterian Hosp. v. Travelers Prop. Cas. Ins. Co. (2d Dept.  2007)

Billing Forms, Certified Mail Receipts, and Third-Party Biller Affidavit Results In Summary Judgment For Plaintiff.

Here is the Angle:  Yet another case that sets forth the Plaintiff’s burden in demonstrating a prima facie case entitlement to summary judgment.

 

The Analysis:  Plaintiff’s summary judgment motion was granted awarding $30,092.49 in no-fault medical benefits.  Plaintiff’s demonstrated a prima facie case by submitting among other things, the billing forms, a certified mail receipt and signed receipt card that referenced the patient and the billing forms, and an affidavit from the Plaintiff’s third-party biller.   The Court held that this demonstrated that the insurer received the no-fault billing and failed to respond within 30 days.  The Court further held that the insurer failed to raise any triable issue of fact in opposition to the summary judgment motion.

 

 

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.

 

3/06/07                        Mount Vernon Fire Insurance Co. v. Morris

Connecticut Supreme Court
Child Molestation Rider Precludes Coverage for Owner of Daycare
Mount Vernon Fire Insurance Co. brought a declaratory judgment action seeking a determination that it is not obligated to defend or indemnify defendants in an underlying tort action pursuant to a commercial general liability policy. The underlying action alleged that Morris sexually abused a child enrolled at a daycare center, of which Morris is owner and director. Mount Vernon sought declaratory judgments that it had no obligation to defend or indemnify defendants based on exclusions in the policy, cancellation of the policy prior to its expiration, and material misrepresentations on the application for the policy. Following cross-motions for summary judgment, the trial court granted Mount Vernon’s motion on the grounds that the exclusions in the policy precluded coverage. The appellate court affirmed, holding that Morris was excluded from coverage under the policy’s child molestation rider because he was the daycare’s owner and director, and not an employee.

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP

 

3/5/07              Hardt v. Town of Watertown
Connecticut Supreme Court.
No Workers Compensation for Firefighter’s Basketball Injury
A volunteer firefighter claimed workers’ compensation benefits for a knee injury sustained while playing basketball. The firefighter argued that benefits were due because the basketball was one of department sponsored activities intended to assist the firefighters in their efforts to maintain the level of physical fitness required for firefighting under local and national guidelines. Accordingly, the firefighter argued, benefits were due under General Statutes § 7-314 (a),4 which provides for workers’ compensation benefits for certain fire service-specific training and instructional activities. The court rejected this argument, holding that, although firefighting requires a certain degree of physical fitness, members of volunteer fire departments are not entitled to workers’ compensation for injuries sustained while they are engaged in purely voluntary physical fitness activities.

Submitted by: C. Theresa Barone (Nelson, Levine, deLuca & Horst) -

3/5/07              Underwriters at Lloyd’s v. McCaul
Florida Court of Appeal, Third District
Auto Exclusion Precludes Coverage for Wrongful Death
Leeann McCaul was killed when a car in which she was a passenger swerved off a roadway and struck a van owned by Tunjos Trading Company (“Tunjos”). The van was parked on the side of the road while Tunjos’ employees were maintaining the area. McCaul’s estate filed a wrongful death complaint based on Tunjos’ alleged negligent failure to place traffic cones on the roadway to warn of the presence of the work and the vehicle. The trial court ruled that Lloyd’s of London had a duty to defend and indemnify Tunjos under its commercial generally liability policy. The appellate court reversed, holding that the auto exclusion in the policy precluded coverage. The exclusion precludes coverage for bodily injury arising out of ownership, maintenance, use or entrustment to others of any auto owned or operated by any insured. The definition of “use” includes operation and loading or unloading. The court’s opinion was based on two theories. First, the failure to warn of the danger created by the presence of a vehicle is inseparable from the use of the vehicle itself. Under tort principles, the duty to use due care concerning a dangerous condition (here, the insured’s van) may be discharged either by correcting the danger or warning of it. Either way, it is the danger itself which is the basis of the insured’s liability and thus of the auto exclusion. In addition, the court found it to be “inconceivable” that a collision with a motor vehicle may be deemed not to arise from its use or operation.

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP)

 

2/27/07            WOOD V. VALLEY FORGE LIFE INS. CO.
Eighth Circuit Court of Appeals

Drug Overdose Results in Coverage Under Life Insurance Rider
Wood sued Valley Forge for benefits under his accidental life insurance policy taken out by Howell and Smith on Howell's life. Howell was found dead after a drug and alcohol overdose. Valley Forge denied benefits based upon Howell's death being a suicide and the rider excluded suicide from coverage. The district court granted summary judgment to the plaintiff on Valley Forge's defense that the death was caused or contributed to by sickness and disease and therefore excluded from accidental coverage. The cause of death was presented to the jury which found that the death was accidental and the district court entered judgment in favor of the plaintiff.

Submitted by: Debra Herron (McNeer Highland McMunn and Varner,L.C. ) 

 

 

CASES IN FULL TEXT

 

Beller v. William Penn Life Insurance Company of New York

 

LeBoeuf, Lamb, Greene & MacRae LLP, New York, N.Y. (Ellen
M. Dunn and Kelly H. Tsai of counsel), for appellant.
Wechsler Harwood LLP, New York, N.Y. (James G. Flynn, Joel
C. Feffer, and Daniella Quitt of
counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), entered October 31, 2005, which granted the plaintiff's motion for class action certification pursuant to CPLR article 9.

ORDERED that the order is affirmed, with costs.

In 2002, the plaintiff commenced the instant action alleging, inter alia, that the defendant, William Penn Life Insurance Company of New York, breached the provisions of its flexible premium adjustable life insurance policies. Specifically, she asserted that the defendant was not following the cost of insurance provisions in the policies when calculating the annual premiums to be paid by policyholders and that the premiums were in excess of what they should have been according to the terms of the policies.

In September 2004, the plaintiff moved for class action certification pursuant to CPLR article 9 and the defendant opposed the motion. The Supreme Court granted the plaintiff's motion and certified the class, limiting its members to policyholders who paid premiums on their flexible premium adjustable life insurance policies after March 20, 1996, and whose premiums increased without regard to the factors contained in the cost of insurance provisions of their policies. 

CPLR article 9, which authorizes and sets forth the criteria to be considered in granting class action certification, is to be liberally construed (see Lauer v New York Tel. Co., 231 AD2d 126, 130; Friar v Vanguard Holding Corp., 78 AD2d 83, 91). "The determination to grant class action certification rests in the sound discretion of the trial court" (Tosner v Town of Hempstead, 12 AD3d 589, 589-590; Lauer v New York Tel. Co., supra). The Supreme Court providently exercised its discretion in certifying the class. Contrary to the defendant's contentions, the plaintiff satisfied the statutory criteria set forth in CPLR 901, and class action certification was warranted (see Jacobs v Macy's E., Inc., 17 AD3d 318; see also Tosner v Town of Hempstead, supra; Friar v Vanguard Holding Corp., supra).
SCHMIDT, J.P., RIVERA, COVELLO and BALKIN, JJ., concur.

Dezer Properties II, LLC v. Kaye Insurance Associates, Inc.

Churbuck Calabria Jones & Materazo, P.C., Hicksville
(Nicholas P. Calabria of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White
Plains (Steven L. Young of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about December 21, 2005, which, inter alia, granted defendant Kaye Insurance Associates, Inc. summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

Hartford Insurance Company (Hartford) brings this subrogation action in the name of its insured, plaintiff Dezer Properties II, LLC (Dezer), against defendant Kaye Insurance Associates, Inc. (Kaye), Dezer's insurance broker, for negligence and breach of contract with regard to Kaye's handling of a claim. It is alleged that Kaye failed to timely notify Hartford of a personal injury claim, permitting a default judgment to be entered against Dezer. However, notwithstanding the alleged negligence and late notice, Hartford defended Dezer, provided coverage, and indemnified its insured for the judgment.

The complaint was properly dismissed. Hartford, as subrogee of Dezer, has no claim against Kaye since Dezer suffered no loss as a result of Kaye's alleged negligence (see Federal Ins. Co. v Spectrum Ins. Brokerage Serv., 304 AD2d 316 [2003]). Moreover, Hartford itself has no claim against Kaye since Hartford is not in privity with Kaye and Kaye owed it no duty (see id.; St. George v W.J. Barney Corp., 270 AD2d 171, 172 [2000]; American Ref-Fuel Co. of Hempstead v Resource Recycling, Inc., 248 AD2d 420, 424 [1998]). Even if Kaye had been negligent in its handling of the claim, there would be no basis for a subrogation action since Kaye is not the party "legally responsible" for the underlying loss (see e.g. Winkleman v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]).

 

General Security Property & Casualty Co. v. American Fleet Management, Inc.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered December 15, 2005, which, to the extent appealed from as limited by the briefs, denied plaintiffs' cross motion for partial summary judgment on their causes of action for breach of contract and quantum meruit against defendants A.W. Transportation, Able Rent A Car, A.C. Rent A Car, Adee Truck & Car Rental, Affordable Auto Rental, American Rent A Car, Bronx Rent A Wreck, Colonial Auto Rental, De Collo Service Center, Dover Rowmat, Freeport Rental Group, Ghasson Rent A Car, H. Quad Leasing, Huntington Auto Rental, Junction Service, Katelyn Enterprises/Elite Auto, Lansing, RJ Car Leasing, Rowmat, Rowtam, Safe Driving School, Swifty Rent A Car, and uncaptioned parties South Shore Rentals and Wolfson's Rental (collectively, the "franchisees"), and granted said defendants' motion for summary judgment dismissing said causes of action, unanimously affirmed, with costs.

Under the clear and unambiguous provisions of the insurance policies and the Deductible Agreement between plaintiffs and defendant American Fleet Management, the franchisees are not liable for the outstanding deductibles paid by plaintiffs, and any ambiguities in the written agreements should be construed to favor the insured franchisees and against plaintiffs, which drafted the agreements (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]). There is no evidence that the parties, in their course of dealing, intended the franchisees to be liable for deductible reimbursements.

Because the franchisees were not obligated to pay the deductibles under the written agreements, the IAS court properly dismissed plaintiffs' second cause of action against the franchisees for breach of contract. The court further correctly dismissed the third cause of action against the franchisees for quantum meruit since plaintiffs' services were performed "at the behest of" American Fleet, not the franchisees (see Kagan v K-Tel Entertainment, 172 AD2d 375, 376 [1991]). Plaintiffs fully performed on the valid written agreements, "the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).

 

Guachichulca v. Laszlo N. Tauber & Associates, LLC

DECISION & ORDER

In an action to recover damages for personal injuries, the second third-party defendant First Mercury Insurance Company appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated February 3, 2006, which denied its motion for summary judgment dismissing all claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs, and the motion of the second third-party defendant First Mercury Insurance Company for summary judgment dismissing all claims insofar as asserted against it is granted.

The second third-party defendant First Mercury Insurance Company (hereinafter First Mercury) issued a general liability insurance policy to Ideal Kitchen Ventilation, Inc. (hereinafter Ideal), which contained an exclusion for bodily injury to an employee of an insured if the injury occurs in the course of employment. An Ideal employee was injured in the course of his employment and sued, among others, the general contractor for the project during which the accident occurred, Venezia Interiors Corporation (hereinafter Venezia). Venezia brought a second third-party action against, among others, First Mercury, seeking a declaration that First Mercury must defend and indemnify it as a potential additional insured under the policy, and Ideal asserted a cross claim against First Mercury. First Mercury moved for summary judgment dismissing all claims insofar as asserted against it. The Supreme Court determined that there was a triable issue of fact and denied First Mercury's motion.

An exclusion from coverage "must be specific and clear in order to be enforced" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311), and an ambiguity in an exclusionary clause must be construed most strongly against the insurer (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398; Bassuk Bros. v Utica First Ins. Co., 1 AD3d 470, 471; Ramirez v United States Fid. & Guar. Co., 133 AD2d 146, 148). However, an unambiguous policy provision must be accorded its plain and ordinary meaning (see Sanabria v American Home Assur. Co., 68 NY2d 866, 868), and the court may not disregard the plain meaning of the policy's language in order to find an ambiguity where none exists (see Acorn Ponds v Hartford Ins. Co., 105 AD2d 723, 724).

The plain meaning of the exclusion was to relieve First Mercury of liability when an insured or additional insured was sued or indemnification was requested for damages arising out of bodily injury to an employee sustained in the course of employment. The insurance provision precluded coverage as to both Ideal and Venezia. Therefore, the Supreme Court erred in finding the existence of a triable issue of fact.

The parties' remaining contentions are without merit or have been rendered academic in light of our determination.

Kenmore-Tonawanda School District v. The State of New York

 

Underberg & Kessler LLP, Rochester (Ronald G. Hull of
counsel), for appellant-respondent.
Buchanan Ingersoll & Rooney PC, Buffalo (Scott M. Philbin
of counsel), for respondent-appellant.

Order of the Court of Claims of the State of New York (Thomas H. Scuccimarra, J.), entered June 29, 2006, which denied the parties' respective motions for summary judgment, unanimously modified, on the law, to grant defendant's motion for summary judgment dismissing the complaint, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Claimant brought the instant action against the State Insurance Fund, the insurer of a company against whom claimant had obtained a judgment, pursuant to Insurance Law § 3420(a) and (b). However, the State Insurance Fund is exempt from the requirements of Insurance Law § 3420(a) and (b) (Insurance Law § 1108). Accordingly, defendant's motion for summary judgment dismissing the complaint should have been granted.

Mahoney v. Turner Construction Co

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York
(Bianca Michelis of counsel), for appellant.
Gilroy Downes Horowitz & Goldstein, New York (James
Gilroy of counsel), for Williams respondents.
London Fischer, LLP, New York (Michael J. Carro of counsel),
for Turner Construction Co. and FDA Queens, L.P.,
respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered September 6, 2005, which, to the extent appealed from, denied third-party defendant New York Crane & Equipment Corp.'s cross motion for summary judgment dismissing the fourth and fifth third-party complaints against it and for summary judgment against the Williams defendants on its counterclaim for contractual indemnification for attorney fees and costs in connection with defending the fourth third-party action, unanimously reversed, on the law, without costs or disbursements, and the cross motion granted. The Clerk is directed to enter judgment accordingly.

On May 12, 1999, plaintiff, an employee of Heritage Air Systems, was assigned to work on the ventilation and duct systems of a building under construction. Heritage had entered into an agreement with Williams Transfer and Rigging, Inc., one of several Williams entities, by which the latter would provide a crane for the project at a cost of $12,000 for two days. Williams (collectively) concedes that it rented the crane from New York Crane. On the morning of May 12, plaintiff and some co-workers were directed to assist the crane operator, whose crew had not yet arrived at the site, in rigging the crane. Plaintiff climbed onto the crane's permanent boom and walked to the end to insert a linchpin. While plaintiff was standing on the partially elevated boom, the crane moved, causing him to lose his footing and fall, thereby sustaining injuries.

Tobin, the operator, although supplied by New York Crane and paid by Williams, worked under the direction and control of Heritage; it is undisputed that Tobin was not under New York Crane's direction or control. As Williams concedes, Heritage's employees, including plaintiff, set up the crane, which was to be used to lift fans, ductwork and material.

Paragraph 3 of the Williams/New York Crane rental agreement contains an indemnification clause requiring that Williams

assume all risks inherent in the operation and use of the item(s) and agree to assume the entire responsibility for the defense of, and to pay, indemnify and hold NY Crane . . . harmless from, and hereby release NY Crane from, any and all claims for damage to property or bodily injury (including death) resulting from the use, operation or possession of the item(s), whether or not it be claimed or found that such . . . injury resulted in whole or in part from NY Crane's negligence, from the defective condition of the item(s) or from any cause.

Plaintiff commenced a Labor Law action against the general contractor (Turner Construction Co.) and Williams, both of which commenced impleader actions against New York Crane. The latter answered and counterclaimed against Williams for contractual indemnification. When Turner and Williams cross-moved for summary judgment dismissing plaintiff's Labor Law claims and any cross claims against them, New York Crane cross-moved for summary judgment dismissing the fourth and fifth third-party complaints against it and for summary judgment against Williams on its counterclaim for contractual indemnification. In so moving, New York Crane argued that it merely leased the crane to Williams, did not employ the operator and had no supervisory control over the operator or the work. Therefore, it argued, it could not be liable for the operator's negligence. It also argued that in the absence of any negligence on its part, it was entitled to contractual indemnification. Turner and Williams opposed the motion on the ground that there was a question of fact as to whether Williams or Turner was the operator's employer, noting that that individual was selected by New York Crane and even though the operator was paid by Williams, the latter had no involvement in his selection. In reply, New York Crane pointed out that Michael Williams, president of one of the Williams entities, testified that his company would hire crane operators by having New York Crane call the union and make a request. Supreme Court denied New York Crane's cross motion as premature, with leave to renew after discovery. We reverse.

Even though it is not clear whether it was New York Crane or the union that arranged for the selection of the crane operator, or whether the operator was employed by New York Crane or Williams (see Bynog v Cipriani Group, 1 NY3d 193, 198 [2003];
see generally Commissioners of State Ins. Fund v Lindenhurst Green & White Corp., 101 AD2d 730 [1984]), summary judgment should have been granted to New York Crane. There was no showing that the operator had been selected negligently, that a defective or inappropriate crane had been provided, or that any act or omission by New York Crane caused plaintiff's injury. As the record shows, New York Crane was no more than a lessor of the crane. It had no personnel at the site; nor did it control or direct the operation of the crane. No evidence was offered in opposition to New York Crane's prima facie showing, by affidavit of its general manager, that it merely leased the crane to Williams and did not supervise the crane operator or have any on-site responsibility.

In any event, even supplying the crane operator, without more, would not support a finding of liability (see Diamond v Reilly Homes Constr. Corp., 245 AD2d 763, 765 [1997]). Here, the only evidence was that Williams paid the operator and that New York Crane was a mere conduit in supplying him. Furthermore, absent the ability to control the work, New York Crane could not be considered a statutory agent of the owner or contractor under Labor Law § 240(1) (see Walls v Turner Constr. Co., 4 NY3d 861, 864 [2005]). Nor can liability be predicated on New York Crane's rental agreement, which did not call for the providing of an operator (see Szarewicz v Alboro Crane Rental Corp., 50 AD2d 770 [1975], affd 40 NY2d 1076 [1976]).

Given the absence of any showing that the indemnitee was negligent, the indemnification provision is not, as contended, void under General Obligations Law § 5-322.1 on the ground that it would indemnify New York Crane for its own negligence (see Cavanaugh v 4518 Assoc., 9 AD3d 14 [2004]).

The claim that further discovery is needed affords no basis for forestalling summary judgment. New York Crane moved for summary judgment two years after it was impleaded. It cannot be determined from the record if Turner and Williams ever sought to depose New York Crane. If discovery is still outstanding, they have only themselves to blame for not having completed it over such a span of time (see Ptacek v City Wide Asphalt Paving Co., 305 AD2d 119, 120 [2003]). In light of the extensive deposition testimony on the employment issue that has already taken place and the lack of a showing of what further evidence might be unearthed, the asserted need for further discovery reduces itself to a "mere hope," which is insufficient to defeat summary judgment (see National Assn. of Sec. Dealers, Inc. v Fiero, 33 AD3d 547, 548 [2006]).

McDonald v. Rose

 

Jacobson & Schwartz, Rockville Centre, N.Y. (Henry J. Cernitz of
counsel), for appellant.
Law Offices of Neil Moldovan, P.C., Carle Place, N.Y. (Daniel
M. Bauso of counsel), for respondents.

 

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the defendant Ford Rose appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated November 23, 2005, which granted the plaintiffs' motion for summary judgment dismissing the affirmative defense of nonpermissive use and, in effect, for summary judgment on the issue of liability and, in effect, denied her cross motion for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion is denied, and the cross motion of the defendant Ford Rose for summary judgment dismissing the complaint insofar as asserted against her is granted.

On December 5, 2001, the vehicle owned by the defendant Ford Rose (hereinafter the defendant) had been reported stolen. Eleven days later, on December 16, 2001, an automobile owned and operated by the plaintiff Andrew McDonald was involved in an accident with the defendant's vehicle. The defendant's vehicle was insured by nonparty New York Central Mutual Fire Insurance Company (hereinafter New York Central). The unidentified driver of the defendant's vehicle fled the accident scene. By letter dated June 19, 2002, New York Central disclaimed coverage on the ground of nonpermissive use (hereinafter the disclaimer). [*2]

In a separate proceeding commenced by the plaintiffs' insurer, Liberty Mutual Insurance Company (hereinafter Liberty Mutual), Liberty Mutual sought to permanently stay arbitration of the plaintiffs' claim for uninsured motorist benefits (hereinafter the proceeding). The Supreme Court, Kings County, upon remittitur from this court (see Matter of Liberty Mut. Ins. Co. v McDonald, 6 AD3d 614), granted the petition in an order dated September 9, 2004, on the ground that New York Central's disclaimer was untimely.

The plaintiffs commenced this tort action against the defendant. The defendant interposed an answer in which she raised, inter alia, the affirmative defense of nonpermissive use. The plaintiffs moved for summary judgment dismissing the affirmative defense of nonpermissive use and, in effect, for summary judgment on the issue of liability. The plaintiffs argued that the issue of nonpermissive use was already determined in the proceeding to permanently stay arbitration. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her on the basis of nonpermissive use. The Supreme Court granted the plaintiffs' motion and, in effect, denied the defendant's cross motion upon determining that the defendant was collaterally estopped from relitigating the issue of nonpermissive use. We reverse.

Contrary to the plaintiffs' contention, the doctrine of collateral estoppel does not bar the defendant from raising the affirmative defense of nonpermissive use (see Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65). At bar, there is no identity of issue which was necessarily decided in the prior proceeding (see Schwartz v Public Adm'r of County of Bronx, supra). The Supreme Court granted Liberty Mutual's petition to permanently stay arbitration based upon the untimeliness of New York Central's disclaimer, not the merits of that defense. Therefore, the defendant was not precluded from raising the issue of nonpermissive use in this action and she can defend on that basis (cf. First State Ins. Co. v J & S United Amusement Corp., 67 NY2d 1044, 1046).

In opposition to the plaintiffs' motion and in support of the defendant's cross motion, the defendant needed to proffer substantial evidence to rebut the presumption of permissive use under Vehicle and Traffic Law § 388(1) and to establish, as a matter of law, that the driver of her vehicle at the time of the accident did not have her permission, express or implied, to use the vehicle. The defendant established her entitlement to summary judgment through the documentary evidence she proffered which consisted of the report of theft to the police on December 5, 2001, her affidavit of theft to New York Central, the accident report indicating that the accident occurred on December 16, 2001, and that the driver of her vehicle fled the scene, and the sworn affidavit of her husband, who had borrowed the vehicle on the day it was stolen and asserted facts relating to the theft (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704; see generally Zuckerman v City of New York, 49 NY2d 557, 562). This evidence clearly established, prima facie, that the defendant's vehicle had been stolen and that its theft had been reported to the police 11 days before the accident occurred.

The plaintiffs, in opposition, failed to raise a triable issue of fact.

Accordingly, the Supreme Court should not have granted the plaintiffs' motion and should have granted the defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against her.
RITTER, J.P., SANTUCCI, SKELOS and DICKERSON, JJ., concur.

Sandy Creek Central School District v. United National Insurance Co.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling and
Henry Rosenweig of counsel), for appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, N.Y. (Avis Spencer
DeCaire and Rona Platt of counsel),
for respondents.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant United National Insurance Company is obligated to defend and indemnify the plaintiffs in an underlying action entitled Scranton v Sandy Creek Cent. School Dist., pending in the Supreme Court, Oswego County, under Index No. C-2003-0441, the defendants United National Insurance Company and Edward Schalk & Son, Inc., appeal from an order of the Supreme Court, Nassau County (Jonas, J.), entered August 31, 2005, which, in effect, denied their cross motion for summary judgment and granted the plaintiffs' motion for summary judgment declaring that the defendant United National Insurance Company is obligated to defend and indemnify the plaintiff Sandy Creek Central School District in the underlying action and reimburse the plaintiff New York Schools Insurance Reciprocal for the costs incurred to date in connection with the defense of that action.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the cross motion of the defendants United National Insurance Company and Edward Schalk & Son, Inc., which was for summary judgment dismissing the third and fourth causes of action insofar as asserted against them, and substituting therefor a provision granting that branch of the cross motion, and (2) by deleting the provision thereof granting that branch of the plaintiffs' motion which was for summary judgment declaring that the defendant United National Insurance Company is obligated to indemnify the plaintiff Sandy Creek Central School District in the underlying action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiffs, and the matter is remitted to the Supreme Court, Nassau County, for, inter alia, the entry of a judgment declaring that the defendant United National Insurance Company is obligated to defend the plaintiff Sandy Creek Central School District in the underlying action entitled Scranton v Sandy Creek Cent. School Dist., pending in the Supreme Court, Oswego County, under Index No. C-2003-0441, and to reimburse the plaintiff New York Schools Insurance Reciprocal for the costs incurred to date in connection with the defense of that action.

The plaintiff Sandy Creek Central School District (hereinafter the District), as owner, contracted with nonparty Murnane Building Contractors, Inc. (hereinafter Murnane), as general contractor, for the construction of additions and alterations to a school. Murnane subcontracted the drywall work to the defendant Edward Schalk & Son, Inc. (hereinafter Schalk). The defendant United National Insurance Company (hereinafter United) issued Schalk a comprehensive general liability insurance policy, which named the District and Murnane as additional insureds, pursuant to the blanket additional insured endorsement, but only with respect to "liability for bodily injury' or property damage' arising solely out of your work' [i.e., Schalk's work] on behalf of said additional insured [i.e., the District]" (parentheticals added). "Your work" was defined as "[w]ork or operations performed by you or on your behalf; and [m]aterials, parts or equipment furnished in connection with such work or operations."

Subsequently, Douglas Scranton, an employee of Schalk, commenced a personal injury action against, among others, the District, arising from injuries allegedly sustained when he slipped and fell on ice in the parking lot of the construction site while heading toward his vehicle on his lunch break. The District, and the plaintiff New York Schools Insurance Foundation as attorney-in-fact for New York Schools Insurance Reciprocal (hereinafter collectively the plaintiffs) commenced this action seeking a declaration of their rights under the insurance policy issued by United to Schalk.

The Supreme Court should have granted that branch of Schalk's cross motion which was for summary judgment dismissing the third and fourth causes of action, which alleged breaches of Schalk's subcontract. Schalk made a prima facie showing of entitlement to judgment as a matter of law with respect to those causes of action (see Alvarez v Prospect Hosp., 68 NY2d 320). In opposition thereto, plaintiffs failed to raise a triable issue of fact. We modify accordingly.

The Supreme Court properly determined that United was obligated to defend the District in the underlying action, and to reimburse the NYSIR for defense costs already incurred in its defense. The duty to defend is broader than the duty to indemnify, and "arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65; Labate v Liberty Mut. Fire Ins. Co., 19 AD3d 652, 653). That is the case here. Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment declaring that United is obligated to defend the District in the underlying personal injury action and, reimburse New York Schools Insurance Reciprocal for the costs incurred to date in connection with the defense of that action.

However, as conceded by the plaintiffs, on this record, it is premature to conclude that they are entitled to indemnification. Accordingly, the Supreme Court should not have granted that branch of the plaintiffs' motion which was for summary judgment declaring that United is obligated to indemnify the District against any liability it may incur to Scranton in the underlying personal injury action. We modify accordingly.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for, inter alia, the entry of a judgment declaring that United is obligated to defend Sandy Creek Central School District in the underlying action entitled Scranton v Sandy Creek Cent. School Dist., pending in the Supreme Court, Oswego County, under Index No. C-2003-0441, and to reimburse New York Schools Insurance Reciprocal for the costs incurred to date in connection with the defense of that action (see Lanza v Wagner, 11 NY2d 317, 334, cert denied 371 US 901).

Sirius America Insurance Company v. TGC Construction Corp.

Calcagno & Associates, Staten Island, N.Y. (Andrew John
Calcagno of counsel), for appellants.
Brody, O'Connor & O'Connor, Northport, N.Y. (Scott A. Brody
and Patricia A. O'Connor of counsel),
for respondents.

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiffs have no obligation to defend or indemnify the defendants TGC Construction Corporation and Giovanni Culotta, a/k/a John Culotta, in an underlying action entitled Matthius v Platinum Estates, pending in the Supreme Court, Richmond County, under Index No. 13353/02, the defendants TGC Construction Corporation and Giovanni Culotta, a/k/a John Culotta, appeal from an order and judgment (one paper) of the Supreme Court, Richmond County (Vitaliano, J.), dated September 30, 2005, which granted the plaintiffs' motion for summary judgment and declared that the plaintiffs have no duty to defend and indemnify the defendants TGC Construction Corporation and Giovanni Culotta, a/k/a John Culotta, in the underlying action and denied their cross motion for summary judgment declaring that the plaintiffs must defend and indemnify them in the underlying action.

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

On March 8, 2002, Robert Matthius sustained personal injuries while employed by a subcontractor at a construction site on Staten Island. In October 2002 Matthius commenced the underlying personal injury action to recover damages against, among others, TGC Construction Corp. (hereinafter TGC). The plaintiff Sirius America Insurance Company, TGC's insurance carrier, and its liability claims examiner, the plaintiff UTC Risk Management Services, Inc. (hereinafter collectively Sirius), first became aware of Matthius's accident on October 29, 2002, when TGC sent it a copy of the complaint in the underlying action. During a November 5, 2002, meeting, TGC's sole shareholder, the defendant Giovanni Culotta, a/k/a John Culotta, stated that TGC was not involved with the site, and for that reason and without reserving its right to disclaim coverage, Sirius agreed to defend and indemnify TGC in the underlying action. Sirius subsequently learned that a TGC sign was at the site, and pursuant to further inquiry, on April 29, 2003, Culotta signed a statement confirming that TGC was not involved with the project. As part of the discovery in the underlying action, Culotta was deposed on July 22, 2004, during which he testified, inter alia, that pursuant to a December 2001 verbal agreement with the developer of the construction site, of which he was one of two shareholders, TGC became the site's project manager, responsible for, among other things, hiring and supervising the general contractor and the subcontractors. Culotta also testified that he had learned of Matthius's accident on the date it had occurred. On August 13, 2004, Sirius learned of Culotta's above deposition testimony. By letter dated September 1, 2004, Sirius informed TGC that it was disclaiming coverage because TGC breached the insurance policy's cooperation clause (§ IV[2][c][3]) by making repeated misrepresentations about its role at the site, and for untimely notice of the occurrence. Sirius then commenced the instant litigation.

Under the circumstances, Sirius established that it was entitled to judgment as a matter of law that it has no duty to defend and indemnify TGC in the underlying action. Because the grounds upon which Sirius denied coverage for untimely notice of the occurrence were not readily apparent to it until August 13, 2004 (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 69), Sirius demonstrated that its disclaimer was timely (see Insurance Law § 3420[d]; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029). Further, Sirius established that TGC repeatedly misrepresented its role as the site's project manager for at least one and one-half years, thereby breaching the insurance policy's cooperation clause ([§ IV[2][c][3]]) (see Federated Dept. Stores, Inc. v Twin City Fire Ins. Co., supra at 37; Matter of Allstate Ins. Co. v Rico, 28 AD3d 353; Avonmark Ins. Co. v Allstate Ins. Co., 294 AD2d 941, 942; Lewis v Nationwide Mut. Ins. Co., 202 AD2d 816, 817-818).

In opposition, TGC failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562).

State Farm Fire & Casualty Company v. Horton

Patrick S. Owen, Goshen, N.Y., for appellants.
Rubin, Fiorella & Friedman LLP, New York, N.Y. (Stewart B.
Greenspan of counsel), for respondent.

 

DECISION & ORDER

In an action for a judgment declaring the rights of the parties under an insurance policy, the defendants M.S., an infant by and through his natural guardian, J.M., and J.M., individually, appeal (1) from an order of the Supreme Court, Orange County (Peter Patsalos, J.), dated June 16, 2005, which granted the plaintiff's motion for summary judgment declaring that it is not obligated to defend or indemnify the defendant Anthony Horton in an underlying action entitled M.S. v County of Orange, pending in the Supreme Court, Orange County, under Index No. 6063/02, and denied their cross motion for summary judgment and (2), as limited by their brief, from so much of an order of the same court dated September 21, 2005, as denied that branch of their motion which was for leave to renew the plaintiff's motion and their cross motion.

ORDERED that the order dated June 16, 2005 is affirmed; and it is further,

ORDERED that the order dated September 21, 2005, is affirmed insofar as appealed from; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The appellants do not lack standing to challenge the plaintiff insurer's disclaimer of coverage (see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467; cf. Lang v Hanover Ins. Co., 3 NY3d 350). Contrary to their contention, however, the plaintiff properly reserved its rights as to the defendant Anthony Horton, an infant by and through his parent and natural guardian, Barbara Horton (hereinafter Anthony) and, under the circumstances, was never required to timely disclaim coverage pursuant to Insurance Law § 3420(d) (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-189).

The doctrine of estoppel is not applicable (see General Acc. Ins. Co. v 35 Jackson Ave. Corp., 258 AD2d 616, 618).

The Supreme Court did not err in relying on Allstate v Mugavero (79 NY2d 153).

Moreover, the Supreme Court properly denied that branch of the appellants' motion which was for leave to renew, as the appellants failed to demonstrate that the additional proof would change the prior determination (see CPLR 2221[e][2]).

The appellants' remaining contentions are without merit.

Stein v. Security Mutual Ins. Co..

Thorn, Gershon, Tymann & Bonanni, Albany
(Gregory Rodriguez of counsel), for third-party defendant-appellant-
respondent.
Williamson, Clune & Stevens, Ithaca (John H.
Hanrahan III of counsel), for defendant and third-party plaintiff-
respondent-appellant.
Robert J. Stein Jr. and Jean G. Stein, Albany,
respondents pro se.

MEMORANDUM AND ORDER


Kane, J.

Appeal from an order of the Supreme Court (Spargo, J.), entered January 25, 2006 in Albany County, which, inter alia, granted plaintiffs' motion for summary judgment.

In November 2002, third-party defendant, Moore Insurance Agency, submitted plaintiffs' application for homeowners insurance to defendant. Pursuant to the agency agreement between defendant and Moore, defendant was bound by the policy at the time that Moore [*2]accepted the application and initial premium payment. The submitted application was unsigned and indicated that no prior loss claims had been experienced in the past five years. Upon receipt and processing of the application, defendant conducted an investigation and discovered that plaintiffs had several prior loss claims, with the most recent occurring in the month preceding submission of the application. Defendant sent plaintiffs a notice of cancellation dated December 18, 2002 stating that, pursuant to Insurance Law § 3425, defendant was cancelling plaintiffs' policy effective January 20, 2003 due to misrepresentations regarding loss history on the application.

On January 3, 2003, a tree fell through plaintiffs' roof, damaging their home. Defendant denied plaintiffs' claim related to this loss, then sent a second cancellation notice declaring plaintiffs' policy void from its inception and returned their premium payment. Plaintiffs commenced this action alleging breach of contract and seeking a declaration that defendant must indemnify them for their loss. Defendant commenced a third-party action against Moore seeking indemnification. In response to motions for summary judgment submitted by all parties, Supreme Court granted plaintiffs' motion and denied defendant's and Moore's motions. Defendant and Moore appeal.

It is undisputed that the application for insurance was never signed by either plaintiff, the application did not reflect any prior losses and plaintiffs had several loss claims in the five years preceding submission of the application. Deposition testimony of plaintiff Robert J. Stein and Moore's employee differ diametrically as to whether they met face-to-face to fill out the application and whether Stein ever disclosed prior losses to Moore. Regardless of whose error resulted in incorrect prior loss information appearing on the application, the application contained a material misrepresentation. Everyone acknowledges that the answer to the loss information question misrepresented the true facts (see Insurance Law § 3105 [a]). Sworn statements by Moore's employee and defendant's employee, and defendant's underwriting policy bulletins, establish that defendant would not have issued the insurance policy at issue if the application had disclosed water damage claims in the past three years, making the misrepresentations material (see Insurance Law § 3105 [b], [c]; compare Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435, 437-438 [2003]; Carpinone v Mutual of Omaha Ins. Co., 265 AD2d 752, 754-755 [1999]).

Because the application for insurance contained material misrepresentations, defendant could have rescinded plaintiffs' policy, rendering it void ab initio (see Insurance Law § 3105 [b]; Curanovic v New York Cent. Mut. Fire Ins. Co., supra at 436). Defendant did not do so. Unlike areas in which insurance coverage is mandatory, such as workers' compensation and automobile liability, here, the general right of rescission for misrepresentation was not supplanted by any specific statute (compare Matter of Cruz v New Millennium Constr. & Restoration Corp., 17 AD3d 19, 22 [2005]; Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293, 297-298 [2000]). As defendant elected to cancel plaintiffs' policy rather than rescind it (compare Insurance Law § 3105 [b], with Insurance Law § 3425 [b]; see 2004 Ops NY Ins Gen Counsel, Aug. 18, 2004, No. 6), the policy was in full force until the cancellation notice's stated effective date of January 20, 2003. Supreme Court correctly issued plaintiffs a judgment and a declaration that defendant was required to indemnify them for their January 3, 2003 loss, as that loss occurred before the cancellation date chosen by defendant and was thus covered by the policy.

Moore was entitled to summary judgment dismissing the third-party complaint. For defendant to prevail against its agent, Moore, on either a negligence or breach of contract theory, Moore's conduct had to be the proximate cause of defendant's damage (see Otsego Mut. Fire Ins. Co. v Robed & Sons, 63 AD2d 784, 785 [1978]; see also General Acc. Ins. Co. v Smith & Assoc., 184 AD2d 616, 617 [1992]). While a dispute exists regarding whether plaintiffs or Moore are responsible for the inaccurate information on the application, this outstanding issue will not prevent a grant of summary judgment because Moore is entitled to such relief under either version (see Brooks v Blue Cross of Northeastern N.Y., 190 AD2d 894, 895 [1993]). Regardless of who was at fault for the inclusion of incorrect loss information, defendant discovered this error prior to December 18, 2002. With that knowledge in hand, defendant chose to cancel plaintiffs' policy as of a future date rather than void it from its inception. This choice by defendant, not Moore's earlier conduct, proximately caused the damages alleged in the third-party action (see New Horizons Amusement Enters. v Zullo, 301 AD2d 825, 827 [2003]).

Crew III, J.P., Peters, Mugglin and Lahtinen, JJ., concur.

Bleecker Street Health & Beauty Aids, Inc., v. Granite State Insurance Company

Weg and Myers, P.C., New York (Dennis T. D'Antonio of
counsel), for Bleecker Street Health & Beauty Aids, Inc., appellant.
Sullivan & Manarel, LLP, New York (B. Jennifer Jaffee of
counsel), for Sterling & Sterling, Inc. of Woodbury N.Y.,
appellant.
White Fleischner & Fino, LLP, New York (Jonathan S.
Chernow of counsel), for Granite State Insurance Company,
respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White
Plains (Nancy Quinn Koba of counsel), for Steven Principe,
respondent.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered March 17, 2006, which granted defendant Granite State's motion for summary judgment dismissing the complaint as against it, denied plaintiff's cross motion for summary judgment and declared that the policy does not cover the claimed loss, and which, in the third-party action by broker Principe Agency against wholesale broker Sterling & Sterling, denied Sterling's motion for summary judgment dismissing the third-party causes of action for negligence and breach of contract, unanimously modified, on the law, Sterling's motion granted, said third-party claims dismissed, [*2]and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered June 13, 2006, unanimously dismissed as academic, without costs.

In this action by a proposed insured against its insurer for breach of contract in disclaiming coverage for a loss resulting from a fire that began in an upstairs restaurant, plaintiff misrepresented on its application that there was no such establishment in the building utilizing a deep fryer. The insurer demonstrated that this misrepresentation was material by submitting an appropriate affidavit from its underwriter, along with a description of its computer system's handling of applications and excerpts from its underwriting guidelines (see Chester v Mutual Life Ins. Co., 290 AD2d 317 [2002]). Although the guidelines stated only that the type of hazard at issue is "to be considered" rather than coverage being denied in such instance, and the insurer's computer logic system would not have automatically denied the application but would merely have triggered review by an underwriter (cf. Iacovangelo v Allstate Life Ins. Co. of N.Y., 300 AD2d 1132, 1133 [2002]), the underwriter herself averred — not as a mere conclusion, but as an invariable fact based upon her experience (cf. Carpinone v Mutual of Omaha Ins. Co., 265 AD2d 752, 755 [1999]; Alaz Sportswear v Public Serv. Mut. Ins. Co., 195 AD2d 357, 358 [1993]) — that the insurer's internal unit considering the matter "always" denied an application if there was a deep fryer or restaurant above the premises of the proposed insured. While an answer to an ambiguous question on an insurance application cannot be the basis for a claim of misrepresentation (see Garcia v American Gen. Life Ins. Co., 264 AD2d 808, 809 [1999]), we find that the instant application was not ambiguous. Moreover, as the motion court aptly discerned, if plaintiff's president, when he signed the application, saw only the signature page, as he testified, he could not have been misled by any unclear language.

Although the motion court initially dismissed third-party plaintiff Principe's claim for indemnification, it should have recognized that the negligence and breach of contract causes of action were only couched as such, and were actually for contribution and indemnification. Principe, as the agent having direct contact with the insured, should have reviewed the application for accuracy or provided the insured with the opportunity to do so before submitting it to the insurer, and thus failed to exercise due care in the transaction (see Utica First Ins. Co. v Floyd Holding, 5 AD3d 762, 763 [2004]). Since its liability toward the insured is predicated on its own fault, Principe cannot seek common-law indemnification from Sterling (Mathis v Central Park Conservancy, 251 AD2d 171, 172 [1998]). Nor may it seek contribution, which is not available for economic loss resulting exclusively from breach of contract (see Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21 [1987]; Trump Vil. Section 3 v New York State Hous. Fin. Agency, 307 AD2d 891, 897 [2003], lv denied 1 NY3d 504 [2003]). Contrary to Principe's contention, this purely legal argument may be raised for the first time at this juncture (see Chateau D'If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]).

In view of the foregoing, it is unnecessary to address Sterling's contentions regarding proximate causation.

Sully v. Kings Luxury, Inc.

Decolator, Cohen & DiPrisco, LLP, Garden City, N.Y.

(Joseph L. Decolator of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated March 30, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their burden of establishing that the plaintiff did not sustain a serious injury as a result of the subject accident (see Insurance Law § 5102[d]; Baez v Rahamatali, 6 NY3d 868, 869; Cervino v Gladysz-Steliga, AD3d [2d Dept, Jan. 23, 2007]). In opposition to the defendants' motion, the plaintiff submitted a physician's report which was unaffirmed and thus, insufficient to raise an issue of fact (see Grasso v Angerami, 79 NY2d 813, 814; Elder v Stokes, 35 AD3d 799; Nkhereanye v Hillaire, 35 AD3d 419). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

Vidor v. Davila

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.

(Stacy R. Seldin of counsel), for appellants.
Bergman, Bergman, Goldberg & Lamonsoff, LLP, Forest Hills, N.Y.

(Allen Goldberg, Michael E. Bergman, and Brian J. Isaac of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Carlos Davila and Cornel Bran appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Douglass, J.), entered January 23, 2006, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff Marie Vidor did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendants Carlos Davila and Cornel Bran is granted.

The defendants Carlos Davila and Cornel Bran met their prima facie burden on their motion of establishing that the injured plaintiff, Marie Vidor (hereinafter the injured plaintiff), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiffs failed to raise a triable issue of fact. The affirmation of the injured plaintiff's treating physician, and his affirmed reports, were insufficient to raise a triable issue of fact. While the affirmation of the injured plaintiff's treating physician dated November 4, 2005, acknowledged for the first time that the injured plaintiff had sustained neck and back injuries as a result of a prior automobile accident in 1996, he merely took the injured plaintiff's word for the fact that those injuries were "minor" and that she was asymptomatic for the approximately four years before the subject accident. There is nothing in his affirmation to indicate that he reviewed, or attempted to review, any of the medical records from that prior accident. Rather, the only basis for his statement appears to be the medical history related to him by the injured plaintiff. Under these circumstances, the injured plaintiff's treating physician failed to adequately account for the prior accident and resulting injuries. Thus, this physician's findings, both in his affirmation and affirmed reports, that the injuries to the injured plaintiff's spine were caused by the subject accident were speculative (see Moore v Sarwar, 29 AD3d 752, 753; Ponce v Magliulo, 10 AD3d 644).

The magnetic resonance images of the plaintiff's cervical and lumbar spine which showed bulging and herniated discs did not, alone, establish a serious injury (see Yakubov v CG Trans Corp., 30 AD3d 509, 510; Cerisier v Thibiu, 29 AD3d 507, 508; Kearse v New York City Tr. Auth., 16 AD3d 45, 49). The mere existence of a bulging or 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 Yakubov v CG Trans Corp., supra; Kearse v New York City Tr. Auth., supra). The injured plaintiff's self-serving affidavit was insufficient to meet that requirement (see Yakubov v CG Trans Corp., supra). The remaining submissions of the plaintiffs were without probative value in opposing the motion since they were unsworn/unaffirmed or uncertified (see Grasso v Angerami, 79 NY2d 813, 814-815; Felix v New York City Tr. Auth., 32 AD3d 527, 528; Yakubov v CG Trans Corp., supra; Pagano v Kingsbury, 182 AD2d 268, 270; see also CPLR 4518[c]).

In light of the above, the plaintiffs also failed to establish that the injured plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Felix v New York City Tr. Auth., supra; Sainte-Aime v Ho, 274 AD2d 569).
CRANE, J.P., MASTRO, SANTUCCI and LIFSON, JJ., concur.

 

Pugh v. De Santis

Calendar Date: January 18, 2007
Before: Mercure, J.P., Crew III, Spain, Mugglin and Rose, JJ.


Little & O'Connor, Glens Falls (Elizabeth E. Little of counsel), for appellants.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany

(Adrienne Odierna of counsel), for respondents.

 

MEMORANDUM AND ORDER


Spain, J.

Appeal from an order of the Supreme Court (Krogmann, J.), entered December 21, 2005 in Warren County, which granted defendants' motion for summary judgment dismissing the complaint.

In January 2003, while stopped in preparation to make a left turn, the vehicle driven by plaintiff Mary Pugh (hereinafter plaintiff) was struck from behind by a vehicle operated by defendant Frank V. DeSantis (hereinafter defendant). Plaintiff and her husband, derivatively, commenced this personal injury action alleging that plaintiff had sustained an Insurance Law § 5102 (d) serious injury as a result of the collision. Defendants moved for summary judgment dismissing the complaint and plaintiffs cross-moved for partial summary judgment on the issue of liability. Supreme Court granted defendants' motion and dismissed the complaint, prompting this appeal by plaintiffs.

Defendants made a prima facie showing that plaintiff suffered no serious injury as a result of this accident. A radiologist report dated the day after the accident noted normal vertebrae alignment with "[n]o fractures, dislocations or sublocations" and "[n]o acute post-traumatic abnormalities." A report authored by an orthopedic surgeon who examined plaintiff four months later in May 2003 opined that plaintiff's complaints "are clearly an aggravation of a pre-existing symptomatic condition related to [a] 1986 motor vehicle accident [and] . . . the residual symptoms . . . are not incapacitating or substantiated by any objective findings which can be causally related to the claim." Orthopedist Robert Sellig examined plaintiff in December 2004 and found that cervical strain related to the 2003 accident had been "superimposed on a pre-existing degenerative disc disease at C5-6 . . .. The patient has a very mild partial disability and it is almost two years since her accident so I would say it is permanent." In addition, defendants relied upon physical therapy records indicating that by May 2003, plaintiff was at times "symptom free" or experiencing "minimal pain." Finally, defendants point out that plaintiff failed to submit medical prescriptions authorizing her to miss work for more than 38 days during the six-month period following the accident. This evidence is sufficient to shift the burden to plaintiffs to come forth with "competent medical proof supported by objective findings to raise a triable issue" as to whether plaintiff suffered any serious injury as defined by the statute (Haddadnia v Saville, 29 AD3d 1211, 1211 [2006]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

Plaintiffs primarily rely on the affidavit of plaintiff's treating physician, internist Donald Merrihew. In response to the evidence that plaintiff's injuries flowed entirely from the earlier (1986) accident, Merrihew submitted an affirmation wherein he stated that he had treated plaintiff for the past eight years and she had never complained about a neck injury prior to the 2003 accident. With respect to establishing a current injury, Merrihew relied upon plaintiff's X rays which, in his opinion and that of Sellig, showed "some straightening" of the cervical spine. Merrihew opined that the straightening was caused by intense muscle spasm resulting from the 2003 collision. In an examination performed in February 2003, Merrihew noted a loss of range of motion of "fifty percent in flexing, extension, lateral rotation and abduction" and detected muscle spasms, most severe in her right upper trapezium. It is not entirely clear from Merrihew's affidavit, but it appears that he detected the spasms through palpation, providing some medically objective evidence of plaintiff's injury (see Toure v Avis Rent A Car Sys., supra at 357; Martin v Fitzpatrick, 19 AD3d 954, 956-957 [2005]).

Merrihew also expressed his familiarity with plaintiff's occupation as a tutor for a special needs child and her home and parenting responsibilities. He explained that plaintiff was unable to work or manage her household following the collision because the pain and limitation of range of motion caused by her muscle spasms made it impossible for her to physically control the special needs child, to remain in any one position for a prolonged period of time or to perform basic household tasks such as vacuuming, washing dishes, doing laundry, driving for long periods of time or shoveling snow. Merrihew also affirms that he kept plaintiff out of work until April 27, 2003 ^[FN1] just over 90 days following the accident.

Merrihew continued to treat plaintiff and referred her to pain management specialists. With respect to the permanency of plaintiff's injury and the extent to which her injuries persist, Merrihew admits that her range of motion "has improved significantly since the first year after the motor vehicle accident," but concludes that "she does not have, nor will she have a full range of motion." He opines that plaintiff continues to suffer from severe limitation because due to myofacial pain syndrome stemming from her whiplash injury she cannot lift over 10 pounds with her right hand and is unable to remain in any one position for a prolonged period of time or to expose her neck to significant strain such as mowing the lawn without running a risk of suffering from severe muscle spasm or headache. Merrihew's affirmation, however, does not quantify the extent of plaintiff's current limitations or provide the results of any recent objective medical data to corroborate his opinion that she remains significantly disabled.

Given this evidence, Supreme Court properly granted summary judgment to defendants on 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 (see Insurance Law § 5102 [d]). To substantiate a claim under either of these categories, "the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003] [emphasis added]), and it is now "beyond cavil" that the demonstrated limitation must be more than "mild, minor or slight" (Palmer v Moulton, 16 AD3d 933, 935 [2005] [internal quotation marks and citations omitted]; see Toure v Avis Rent A Car Sys., supra at 350-351).

There is consensus among the medical providers involved in this litigation that plaintiff suffers from preexisting degenerative disk disease. The concession by defendants' experts that the 2003 accident caused an aggravation of this disease and/or of some preexisting injury related to the 1986 accident, and that the resulting disability is permanent, is qualified by their opinion that the extent of plaintiff's remaining disability is "very mild" and "not incapacitating." In response, plaintiffs did not provide any objective medical evidence of a current, significant injury. Merrihew's affirmation, while opining that plaintiff remains "severely limited in her ability to engage in physical activities," acknowledges that plaintiff has improved significantly and fails to quantify the limitations in her current range of motion or identify any objective medical evidence to support the existence or extent of the alleged persisting limitations (see Simpson v Feyrer, 27 AD3d 881, 883 [2006]; Pianka v Pereira, 24 AD3d 1084, 1085-1086 [2005]; Jockimo v Abess, 304 AD2d 999, 1000-1001 [2003]; see also Gaddy v Eyler, 79 NY2d 955, 957 [1992]).

We reach a different conclusion with respect to the 90/180-day category of serious physical injury (see Insurance Law § 5102 [d]). With respect to this category of serious injury, defendants' motion papers assert that plaintiff sustained no injury under this category as a result of the 2003 accident, that documentary evidence indicates that plaintiff was able to return to work and remain at work thereafter after April 7, 2003 less than 90 days after the accident and that plaintiff's allegations that she could not work, play softball, go grocery shopping or ride roller coasters are insufficient, even if credited, to demonstrate a 90/180-day serious injury. However, the reports authored by defendants' experts conceding that the 2003 accident aggravated a preexisting condition, combined with Merrihew's assertion that plaintiff did not complain of any neck pain prior to the 2003 accident, present a question of fact as to whether and to what extent plaintiff's injuries stem from the 2003 accident (see Madden v Dake, 30 AD3d 932, 936 [2006]).

Further, in contrast to the documentary evidence of plaintiff's medically necessitated absence from work, Merrihew's affirmation states that plaintiff was not able to return to work at all until near the end of April 2003. Finally, plaintiff's affidavit submitted in response to defendants' motion indicates that, following the collision, she was unable to work for approximately three months, could not go grocery shopping for about six months, could not do laundry or cooking for approximately five months, had difficulty sitting to help her children with homework for approximately three months, could not attend her children's sporting and other activities for approximately three months, and remains unable to mow the lawn, lift weight greater than 15 pounds, perform volunteer work, exercise, or work at a computer for more than 10 minutes at a time. These assertions, combined with Merrihew's affirmation opining based in part on his detection of muscle spasms and the X ray showing a straightening of plaintiff's spine that these limitations are consistent with the injury he believes plaintiff suffered as a result of the accident, are sufficient to raise a question of fact as to whether plaintiff suffered a serious injury under the 90/180-day category (see Martin v Fitzpatrick, supra at 957; Nichols v Turner, 6 AD3d 1009, 1011-1012 [2004]).

Finally, we address plaintiffs' cross motion on the issue of liability. Viewing the evidence in the light most favorable to defendants, we find that partial summary judgment is appropriate. It is undisputed that plaintiff's vehicle was struck from behind while stopped and defendant subsequently pleaded guilty to driving while ability impaired, creating a prima facie case of negligence (see Pampris v Egnasher, 20 AD3d 746, 746 [2005]; Nichols v Turner, supra at 1012-1013). Defendants have not offered any evidence of a cause for the accident other than defendant's negligence. Accordingly, plaintiffs are entitled to partial summary judgment on the issue of liability (see Andre v Pomeroy, 35 NY2d 361, 365 [1974]; Pampris v Egnasher, supra at 746-747).

Mercure, J.P., Crew III, Mugglin and Rose, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' motion for summary judgment dismissing the complaint alleging that plaintiff Mary Pugh suffered a serious injury in the 90/180-day category; motion denied to that extent and plaintiffs' cross motion for partial summary judgment on the issue of liability granted; and, as so modified, affirmed.

Footnotes

Footnote 1: Although Merrihew's affidavit says April 27, 2005, it is clear from the surrounding text and other evidence of plaintiff's work history that he meant April 27, 2003.

 

Smith v. Allstate Insurance Company

Blank & Star (Helene E. Blank and Pollack, Pollack, Isaac & De
Cicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellant.
Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo of counsel),
for respondents.

 

DECISION & ORDER

In an action, inter alia, pursuant to Insurance Law § 3420(a) to recover an unsatisfied judgment against the defendants' insured, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated March 31, 2006, as granted his motion for summary judgment only to the extent of awarding him the sum of $25,000.

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

Contrary to the plaintiff's contention, the Supreme Court properly limited the amount of his recovery from the defendant insurance companies to $25,000. Insurance Law § 3420(a)(2) permits a plaintiff who holds an unsatisfied judgment against an insured individual to maintain an action against the insured's carrier to collect the judgment. An action pursuant to § 3420(a)(2) can be commenced following a 30-day waiting period after service upon the insurance company of notice of entry of the judgment. However, the statute does not permit the plaintiff's recovery to exceed "the amount of the applicable limit of coverage" under the subject insurance policy (see Kleynshvag v GAN Ins. Co., 21 AD3d 999; Bennion v Allstate Ins. Co., 284 AD2d 924; Burgos v Allcity Ins. Co., 272 AD2d 195).

Here, the plaintiff alleged in his amended complaint that the subject automobile liability policy had a limit of $25,000, and the certified copy of the policy and declarations page produced by the defendants in opposition to the motion for summary judgment confirmed that the coverage limit for bodily injury was $25,000 per person, and $50,000 per occurrence. Although the certification statement annexed to the policy, which was signed outside of New York State, was not accompanied by a certificate authenticating the authority of the notary who administered the oath (see CPLR 2309[c]), this omission was not a fatal defect (see CPLR 2001; Sparaco v Sparaco, 309 AD2d 1029; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2309:3).

The plaintiff's remaining contentions are without merit.

Paterra v. Nationwide Mutual Fire Insurance Co.

Paul J. Israelson, Plainview, N.Y., for appellant.
Montclare & Wachtler, New York, N.Y. (Paul D. Montclare of
counsel), for respondents.

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant appeals from stated portions of an order of the Supreme Court, Westchester County (Jamieson, J.), entered April 3, 2006, which, among other things, denied those branches of its motion which were to dismiss the complaint pursuant to CPLR 3211(a)(5), or in the alternative, to dismiss, pursuant to CPLR 3211(a)(7), the claims alleging breach of the covenant of good faith and to recover consequential and punitive damages.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant's motion which were to dismiss, pursuant to CPLR 3211 (a)(7), the claims alleging breach of the covenant of good faith and to recover consequential and punitive damages and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In this case, it is undisputed that the defendant established that the two-year limitations period set forth in the insurance policy had expired when the action was commenced (see Assad v City of New York, 238 AD2d 456, 456-457). To overcome this bar, the plaintiffs invoked the doctrine of estoppel, "which provides that a defendant may be estopped from pleading the statute of limitations when the plaintiff was induced by fraud, misrepresentations, or deception to refrain from filing a timely action'" (Garcia v Peterson, 32 AD3d 992, quoting Simcuski v Saeli, 44 NY2d 442, 448-449). To rely on this doctrine and defeat those branches of the defendant's motion which were to dismiss the complaint as time barred, the plaintiffs assumed the burden to "adequately plead[] facts which, if proven, would establish the existence of an equitable estoppel" (Doe v North Shore Univ. Hosp., 28 AD3d 603, 604; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 754-755). Here, the plaintiffs satisfied their burden.

The plaintiffs' claim predicated on a breach of the implied covenant of good faith is duplicative of the breach of contract claim. Since there is no separate tort for bad faith refusal to comply with an insurance contract, this claim should have been dismissed (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318-320; Johnson v Allstate Ins. Co., 33 AD3d 665; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842). Contrary to the plaintiffs' contentions, they do not have a claim for consequential damages beyond the limits of the policy for the claimed breach of contract (cf. Acquista v New York Life Ins. Co., 285 AD2d 73, 82).

Since there is no basis for determining that the defendant's conduct constituted a tort independent of the contract, the plaintiffs' demand for punitive damages also should have been dismissed (see New York Univ. v Continental Ins. Co., supra at 319-320; Teig v First Unum Ins. Co., 282 AD2d 669, 669-670; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 194). Further, the plaintiffs failed to allege sufficient facts warranting punitive damages to vindicate a public right (see New York Univ. v Continental Ins. Co., supra at 315; Johnson v Allstate Ins. Co., supra).

To the extent that the plaintiffs raise issues concerning the dismissal of the second cause of action, we note that the plaintiffs did not cross appeal from the portion of the order concerning that cause of action.

Chubb National Insurance Company v Platinum Customcraft Corp.

Singer Netter Dowd & Berman, White Plains (Edward M.
Berman of counsel), for appellant.
Law Offices of Steven I. Hilsenrath, Brooklyn (Leslie A.
Lombard of counsel), for respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 13, 2006, which, in a subrogation action by plaintiff insurer to recover money it paid to its insured for damage to a ring allegedly caused by defendant jeweler, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Defendant argues that plaintiff has no right of subrogation because its policy provides that jewelry is not insured unless itemized, the ring was not itemized, and plaintiff therefore was not compelled to make payment but did so voluntarily. However, annexed to defendant's moving papers was not the policy itself, but only a "Coverage Summary Renewal," which, while broadly addressing coverage, specifically refers the reader to the policy. Whether coverage exists cannot be determined without the policy itself, and the motion should therefore have been denied on the ground that defendant failed to satisfy its initial burden (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).